Continuation of questioning after accused expressed wish to see lawyer was breach of Charter rights

Ontario criminal | Criminal Law

Charter of Rights and Freedoms

Arrest or detention [s. 10]

Continuation of questioning after accused expressed wish to see lawyer was breach of Charter rights

Accused was arrested in connection with recently-committed robbery and stated that he wanted to speak to duty counsel. Police officer continued to question him, prompting accused to give exculpatory statement about his whereabouts. Accused spoke to duty counsel before police interview in which he gave substantially same exculpatory statement as he had before. At trial, police interview statement was admitted while accused advanced similar alibi except that he claimed to have been with spouse shortly before with robbery instead of woman named S. Accused was convicted of robbery and related offences. Accused appealed. Appeal allowed. Connections between first statement and interview led to conclusion that interview statement was tainted. Trial judge did not apply test from precedent, focusing on whether there was causal link between statement and interview and not considering temporal or contextual considerations. Officer’s failure to hold off from questioning after accused expressed wish to see lawyer was breach of s. 10(b) of Canadian Charter of Rights and Freedoms. On review of entire course of events from breach to interview, it was part of same transaction or course of conduct. There was close contextual link as, from accused’s perspective, interview after four hours in police custody with about five minute conversation with counsel, was continuation of earlier questioning as accused noted he was repeating what he had already told police. If police wanted fresh start, they should have made clear to accused that his decision whether or not to speak to them should not be influenced by anything he had already said to them.
R. v. Hamilton (2017), 2017 CarswellOnt 2871, 2017 ONCA 179, K. Feldman J.A., E.E. Gillese J.A., and S.E. Pepall J.A. (Ont. C.A.).

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