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Right to Counsel, or Lack Thereof?
G. Shawn Swarts
G. Shawn Swarts
G. Shawn Swarts
Shawn graduated with a law degree from University of Western Ontario. Shawn articled in Ottawa, specializing in criminal defence work. Since his call to the bar in 1991, he continues to practice in this area.

Dec 2010-Recently the Supreme Court of Canada had to decide three cases involving how much opportunity an accused should be given to exercise their Charter right to counsel. All three cases involved an accused who had already been given his rights to counsel and had spoken to a lawyer. Then the accused while being interrogated asked to speak to his lawyer again and in all three cases the police refused to do so saying the accused had already spoken to a lawyer. The issue before the Supreme Court was whether your rights to counsel consists simply of a one time right to speak to a lawyer, "the classic one phone call" or whether you had an ongoing right during interrogation to continue to speak to counsel if the accused so desired.

In a five to four split decision the majority of the Supreme Court sympathized with the police and narrowly restricted the right to counsel of the accused in the interrogation process. The law in Canada now is that you are entitled to speak to a lawyer only once and the police have no obligation to allow you to speak to counsel any time further after your initial phone call unless "something happens in the interrogation room to change their situation dramatically."

This decision again waters down a citizen's rights under the Charter. Justice Binnie was especially harsh in his dissenting judgement criticizing the majority, he said "what now appears to be licensed is that a presumed individual may be detained and isolated by the police for at least five or six hours without reasonable recourse to a lawyer- during which times the officers can brush aside assertions of the right to silence or demands to be returned to his or her cell in an endurance contest in which police interrogators, taking turns with one another, hold all important legal cards." Mr. Paul Burstein, President of the Criminal Lawyers Associated commented on this decision as follows "This is a disappointing retreat from the decisions of the Supreme Court in the previous three decades recognizing the role which the right to counsel plays in a fair and just system of criminal justice. With the courts decision today suspects are now guaranteed nothing more than the preverbal "one phone call"- which had never before been the law in Canada."

This decision now effectively allows the police to hold and interrogate an accused for literally hours after they have their one phone call with counsel, and prohibits the accused from receiving any more legal advice. Regrettably this will inevitably lead to wrongful detentions and unfortunately wrongful confessions when the accused is worn and broken down by skilled police interrogators. It is sad commentary when the Supreme Court is now adopting a "Law and Order" agenda over rights that Canadians up until recently had traditionally enjoyed

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