Denigrating Advice of Counsel - Keenan Fonseca

Section 10(b) of the Canadian Charter of Rights and Freedoms (“the Charter") gives the right to counsel, which includes the right to contact counsel and obtain legal advice but also requires that the police respect the advice given by counsel to an accused. In the Provincial Court of Manitoba’s (“the MBPC”) 2021 decision of R v Soriano (“Soriano"), the accused’s rights under section 10(b) of the Charter were allegedly infringed by a police detective who was determined to get him to talk, regardless of the constitutional consequences. Soriano involves an application of the remedy to exclude evidence under section 24(2) of the Charter as well as an analysis of whether the Crown proved the voluntariness of the accused’s statement beyond a reasonable doubt. Nevertheless, the section 10(b) analysis will be the focus of this short article.

A confession made under pressure

In Soriano, the accused was made aware of a complaint made against him through his work as a personal trainer by his employer and was advised by his employer to report to a police station in order to address the issue. Once at the police station, the accused was met by Detective McKinnon (“Det McKinnon”), who had 12 years’ detective experience. Det McKinnon placed Soriano under arrest and read him his charge, caution, and right to counsel. Upon hearing his rights, Mr. Soriano said he did not have a lawyer in mind and asked if he could call his father to ask the name of his lawyer. Det. McKinnon responded by saying adults only have the right to speak with a lawyer and told him that he could have the phonebook or contact duty counsel.

Upon speaking to duty counsel, Mr. Soriano asserted that he was satisfied with his legal advice and made Det McKinnon aware that he was advised not to talk. Det McKinnon responded that she had a few things to ask him about that were unrelated to the allegation and were solely for obtaining background information to brief her sergeant when the accused was to be considered for release. Det McKinnon then left the room and returned two hours and twenty-two minutes later.

Upon her return, the accused in Soriano expressed that his intention was to tell the police everything, but the lawyer had advised him to shut his mouth. In response, Det McKinnon said that it sounded like he was confused and conflicted about whether he should talk; she said that sometimes people who are arrested do not get the opportunity to tell their side of the story to the police and that, at the sex crimes unit, they like to speak with people because the charge of sexual assault “can be more of a grey area”.

Det McKinnon continued to press the accused about information relevant to the accusation, even though he repeatedly expressed that his legal advice was not to talk. When the accused asked if he could have a lawyer there today so he could talk, Det McKinnon responded that it was only them talking and that they do not bring lawyers in to talk to people. She went on to say that lawyers only look out for guilty people and that, in her opinion, it was in his best interest to talk. This interview resulted in the accused making a statement that was of use to the Crown in their case against him.

Duties under Section 10(b)

The main issue arising in Soriano is whether Det McKinnon breached the accused’s rights under section 10(b) of the Charter by denigrating and belittling the advice of his counsel. The duties the police have when an individual wishes to consult with counsel are articulated in the case of R v Bartle (“Bartle") and are as follows:

This court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

1. to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

2. if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

3. to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

Regarding the second and third duties, these are recognized as implementation obligations to respect a detainee’s right to consult counsel and does not require the presence upon request of counsel by the accused during a custodial interrogation. However, the duty includes permitting and respecting a detainee’s right to further consultation with counsel when developments in the course of the interrogation necessitate it in order to satisfy the purpose of section 10(b) of the Charter. It was further stated in Sinclair that, if the police undermine the legal advice that the detainee has received, this may have the effect of distorting or nullifying it; this undercuts the purpose of section 10(b). In order for this effect to be counteracted, it has been found necessary to give the detainee a further right to consult counsel.

Detective’s erroneous judgment breached Charter

It was determined in Soriano that Det McKinnon had met her first obligation under section 10(b) of the Charter for the accused. The concerning part of Det McKinnon’s actions were with the implementation of the accused’s rights, as the judge indicated that he was denied an opportunity to select counsel of his choice when Det McKinnon denied his request to call his father to identify a lawyer. The MBPC pointed to the Ontario Court of Justice’s decision in R v McKnight, in which the accused asked to have his aunt contacted to request his lawyer and the police made the call.

The next issue identified by the MBPC was that Det McKinnon had failed to make any inquiry to determine if counsel for Soriano was on the way, as he clearly expected that his counsel be physically present. Further to this issue, Det McKinnon gave evidence that, if Soriano had requested to speak to counsel again, he would have been permitted to; in failing to offer a follow up call to counsel when it was apparent that he was confused and conflicted, she relied on the impression of his intelligence. This was especially concerning because Soriano had asked if his lawyer could be there, and Det McKinnon’s response did nothing to further this request. Regarding the issue of Det McKinnon relying on the accused’ intelligence, the MBPC found this concerning, as he was a personal trainer with no experience with the criminal justice system and Det McKinnon’s assumption was an error.

The MBPC took issue with the fact that the accused and his counsel were deliberately left with little to no information about the jeopardy that they were facing with the charges. This combined with the fact that Det McKinnon alluded to sexual assault being a “grey area” left the accused to assess for himself whether or not his responses were imprudent. The MBPC in Soriano stated that it was clear from the interaction that Det McKinnon was attempting to get around Soriano’s advice from counsel by demeaning the advice to remain silent and not offering him another opportunity to consult counsel. The accused was repeatedly questioned, although he made it clear his advice was to remain silent; Det. McKinnon’s response was to ask “background information questions” which blurred the lines between obtaining background information and interrogation. In Soriano, the MBPC ruled that the defence had established on a balance of probabilities that the accused‘s right to counsel under section 10(b) of the Charter had been violated.

Accordingly, the MBPC in Soriano applied the evidence exclusion test arising from the case of R v Grant, finding that the statement was to be excluded pursuant to section 24(2) of the Charter. The MBPC also determined that the Crown did not establish beyond a reasonable doubt that the statement of Mr. Soriano was made voluntarily.

Police left to their own devices

Soriano represents the extent that the police are willing to go to in exercising their powers to force a detainee to talk. This constitutional overreach is a result either of the police not being aware of what exactly their responsibility is as it pertains to the section 10(b) rights of accused persons or else being willing to push these boundaries and violate these rights. This illustration of unconstitutionality fits with the trend of police action in violation of accuseds’ Charter rights with the perspective that the infringement can be justified later; either way, the evidence may still be included depending on its effects on the administration of justice.

Soriano involved the accused reporting to the police station immediately upon learning about a complaint with full intentions of clearing the issue up. His lack of knowledge of the justice system and his rights were taken advantage of in order to illicit statements about the incident. It is important to note that the detective in Soriano had 12 years of detective experience and thus was likely savvy to the ways in which she might push on the accused’s Charter rights as a strategy to gain evidence. In other words, the police action displayed in Soriano was likely not just a mistake of the police.

Many Canadians are not fully aware of their rights under the Charter, especially as they apply to section 10(b). This leaves the responsibility to police to properly address their own obligations under this section, refrain from infringing upon an accused’s Charter rights, and respect the legal advice given by counsel.