Right to Counsel - No Miranda, No Limits?
The section 10 (b) Right to Counsel
When most people think of the right to counsel, they think of the iconic Miranda caution, ever present in American movies and TV shows. Perhaps the most pervasive distinction between the Miranda caution and the Canadian s. 10 (b) right to counsel, is the right to a have a lawyer present during police interrogation. Given its prominence in American, and by default, Canadian popular culture, it seems apt to wonder if the American standard is more robust than the Canadian section 10(b) right, and in particular, why do Canadians not have the right to counsel present at the time of interrogation? Let’s overview the right to counsel in Canada and the USA and explore the contextual reasons for not having a right to counsel present during interrogation in Canada.
Origins of Miranda
The Miranda caution has its roots in the aim of preventing abusive police tactics in the United States . In the case of Miranda v Arizona (1966), the United States Supreme Court stated that based on the Fifth Amendment guarantee against self-incrimination, persons who are in police custody are to be specifically informed of four key pieces of information: the right to remain silent; the principle that anything the suspect says may be used in evidence against him or her in a court of law; the right to a lawyer; and, if the suspect cannot afford a lawyer, the right to have a lawyer appointed before an interrogation commences.i
Section 10(b) Right to Counsel in Canada
In Canada, the right to counsel is triggered upon arrest or detention.ii The s. 10(b) right imposes two types of duties on the police: informational and implementational. Informational duties refer to those which require the authorities to advise the accused of a) his or her right to retain and instruct counsel without delay b) information regarding the availability of and means of accessing Legal Aid counsel and c) information regarding the availability of and access to the immediately available, but temporary “Brydges” duty counsel, which is a form of legal service available regardless of the accused’s financial position.iii
The implementation duty requires the police to allow the accused to exercise the rights that they were advised of. After all, it is one thing to inform the accused of their rights, however, if the police don’t allow the accused to exercise these rights they become largely useless. First of all, the authorities must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay; secondly, the authorities must cease questioning or otherwise attempting to elicit evidence from the detainee until he or she has had a reasonable opportunity to consult counsel.iv The important difference between information and implementation rights, is that the latter is only triggered if the accused indicates a desire to exercise his or her rights to counsel.v
This being said, a right to re-consult counsel in Canada may exist if the nature of jeopardy facing the accused changes or there is reason to believe that the accused did not understand the first iteration of the rights.vi
Is the Miranda Caution more robust than the right to counsel in Canada?
There remains one stark difference between the American and Canadian right to counsel: the right to have your counsel present during interrogation. Although the Miranda caution is decidedly more well known, and may, at a cursory glace, seem more robust than its Canadian counter part, some scholars suggest that the s. 10(b) right is, in fact, more expansive than Miranda warnings, and “more clear in informing the suspect of their right to call a lawyer”.vii One of the key differences is that the Miranda warning leaves the option of calling a lawyer open as general information, whereas the Canadian warning asks a suspect if they want to call a lawyer “right now” .viii Additionally, the Supreme Court of Canada has stated that due to the significant differences between the American and Canadian policing regimes, the Miranda rule actually applies in a host of much less favourable circumstances for the accused.
One notable exception to the rule that counsel need not be present during interrogation in Canada is section 146 of the Youth Criminal Justice Act (YCJA).ix According to section 146 of the YCJA, a young person (under the age of 18) is required not only to be given the opportunity to speak with counsel, but to have counsel present when they are questioned by police. Any waiver of these rights must be audio and videotaped, as well as written and signed by the accused. The reasoning for this legislation is the increased vulnerability of youths and the thought that youths are inherently less morally culpable for their offences than adults are, which has long been recognized as a principle of fundamental justice. Therefore, the YCJA accommodates the special situation of youths involved in the criminal justice system.
Certainly, there is merit in allowing young persons access to counsel to interrogation. However, it should be noted that these procedural practices operate effectively in a Canadian context for young people. This seems to undermine the court’s argument that extending access to counsel during interrogation would disrupt the police investigative process. It also discounts the argument used in by the Supreme Court in R v Sinclair (2010 SCC 35), that right to counsel in interrogation is inherently different in a Canadian context.
Despite the court’s trepidation surrounding expanding the right to counsel being present during interrogation, and the academic scholarship on the matter, there are exceptions in Canadian law which recognize the benefit of having counsel present.
Since there are recognized circumstances in law which permit the presence of counsel, this raises the question: why should the section not be given its most robust reading? If it is beneficial to have counsel present during interrogation for youth, why not extend this right to adults?
Whether the solution to this issue is to extend the right to counsel during interrogation to all citizens, or to accept the court’s reasoning in Sinclair, what is clear from the case law is that the balance of power in Canadian police investigations currently remains overwhelmingly in favor of the state.
i Miranda v Arizona,  384 US 436.
ii R v Willier, 2010 SCC 37 at para 33,  2 SCR 429 [Willier].
iii R v Brydges,  1 SCR 190 at para 16.
iv R v Prosper,  3 SCR 236 at para 35.
v R v Suberu, 2009 SCC 33 at para 42.
vi R v Bartle  3 SCR 173 at para 18, ACS no 74 [Bartle].
vii A Review of Brydges Duty Counsel in Canada, online < http://www.justice.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr03_la4-rr03_aj4/p4.html>.
ix Youth Criminal Justice Act SC 2002, c-1, s. 146.