Ontario Criminal

Charter of Rights

Officer made only passing reference to right to counsel

Application by accused to exclude statements that she gave to police because her right to counsel under s. 10(b) of Canadian Charter of Rights and Freedoms was violated. Accused was charged with aggravated assault and mischief. At issue were two of four statements she made to police. First statement was made in police cruiser after accused was arrested for assault causing bodily harm and it was made before she was driven to police station. Officer informed accused of her right to counsel but he received no answer when he asked if she understood. When officer arrived at station he did not advise officer-in-charge about problem with determining accused’s comprehension of right to counsel. Second statement was videotaped statement accused gave to officer for almost two hours. That statement was given four hours after she was arrested and by then she was charged with aggravated assault and mischief. There was no evidence that accused was told about these charges before she was interviewed. During interview officer made only passing reference to right to counsel and there was no discussion as to whether she understood it, whether she exercised her rights or waived them. Application allowed. Videotaped statement was given voluntarily. Right to counsel was violated and both statements were excluded.

R. v. Theoret (Feb. 28, 2013, Ont. S.C.J., Durno J., File No. CR-11-1614-00) 105 W.C.B. (2d) 20.

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