Stuart O'Connell Criminal Law Blog

Section 10(b) of the Canadian Charter of Rights and Freedoms reads: 10. Everyone has the right on arrest or detention […]   (b) to retain and instruct counsel without delay and to be informed of that right… As the Supreme Court held in R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38, s. 10(b) imposes two duties on the police – an informational duty and an implementational duty. The informational duty requires that the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The onus lies on the Applicant to demonstrate that his/her right to counsel was violated under s.10(b) of the Charter. Ri ghts to Counsel and the Role of the Police In most cases the police may infer that the detainee understands the rights read to them.   Police do not have a duty t...

Defence counsel do not fall within the “circle” of informer privilege — the group of people who are entitled to access information covered by informer privilege and who are bound by it. Traditionally, this circle is tightly defined and has only included the confidential informer himself or herself, the police, the Crown and the court. R. v. Brassington , 2018 SCC 37, at para. 41; R. v. Barros , [2011] 3 S.C.R. 368, at para. 37.  In all cases where informer privilege applies, disclosure outside the circle requires a showing of “innocence at stake”. R. v. Brassington , at para. 47. Thus, solicitor-client privilege, which protects the client's communications with counsel from disclosure and compulsion, does not provide a basis for that client to communicate information that is otherwise protected from disclosure if it tends to identify a confidential informer. R. v. Brassington , at para. 48. Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca (...

As a general rule, prior consistent statements of a witness are inadmissible.  There are two primary justifications for the exclusion of such statements: first, they lack probative value ( they are self-serving, easily fabricated, and redundant) and second, they constitute hearsay when adduced for the truth of their contents.                 R. v. Dinardo , 2008 SCC 24 (CanLII) at para. 36.  Further, their repetition before the trier of fact is capable of working significant prejudice. See R. v. M.P., 2018 ONCA 608 , at para. 77. Exceptions to the rule Like other admissibility rules which are primarily exclusionary in their effect, the general rule enjoining introduction of prior consistent statements of a witness brooks exception. These exceptions permit introduction of prior consistent statements for restricted purposes which differ depending on the exception, for instance: 1 . T...