Prosper Warning: Wanted to Speak with My Lawyer, Changed My Mind


Where a detainee who has previously asserted the right to counsel indicates that he or she has changed his or her mind and no longer wants legal advice, police are required to inform the detainee of  

1.    his right to a reasonable opportunity to contact a lawyer, and

2.    the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.   

This is known as a Prosper warning.

See R. v. Prosper, [1994] 3 S.C.R. 236.

The detainee does not have to expressly say that he changed his mind about wanting to speak to counsel without delay in order to trigger entitlement to a Prosper warning. Just as a waiver can be implicit, so too can a change of mind about getting the kind of immediate legal advice that s. 10(b) is meant to protect. Accordingly, if it is apparent that a detainee has changed his mind about wanting to speak to counsel without delay, and no other legal impediments to the right to a Prosper warning are operating, that warning must be given.

R. v. Fountain, 2017 ONCA 596, at para. 44;
R. v. Smith (1999), 44 O.R. (3d) 373 (C.A.), at p. 384.

Stuart O'Connell, O'Connell Law Group, www.leadersinlaw.ca


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