CONSTITUTIONAL ISSUES - Legal rights - Right to retain and instruct counsel without delay

Appeal by the accused from conviction for first degree murder of M. In 2015, the appellant killed three people. The police believed the three killings, only days apart, in this small community must be related. At the first meeting with the appellant, and every interaction thereafter, the police properly Chartered and cautioned the appellant, including advising him of s. 10(b) on each occasion. Eventually, the appellant confessed to killing B and his daughter but steadfastly denied any participation in the killing of M. While incarcerated awaiting trial, the appellant tried to commit suicide. An officer visited the appellant at the remand centre. During the conversation that followed, the appellant confessed to killing M. The appellant declined the invitation to meet with the same officer two months earlier. At the outset of the meeting the appellant was told that he did not have to stay and talk, that he was free to leave at anytime, that he was still a suspect in the M killing and that anything he said about that offence could be used as evidence. The Crown’s case against the appellant for killing M relied almost exclusively on his confession. The appellant argued the officer breached his right to counsel the day the appellant confessed to the M killing. The appellant argued the trial judge erred in finding that the police were not required to remind him of his s. 10(b) Charter rights as he was not detained.

HELD: Appeal dismissed. The appellant was not detained at the time he confessed. There was no legal obligation on the appellant to meet with the officer, and there were no circumstances that would have caused the appellant or a reasonable person in his situation to think they were required to comply with the request to meet or to think that they had no choice but to stay in the room and co-operate. There were never any direct or pressing or accusatory questions leading to the appellant’s confession. By being a suspect, the officer was not legally obliged to remind the appellant of his s. 10(b) rights. There had been no change in his jeopardy. Since September 2015, the appellant had only been investigated and questioned by the police for three murders. Considering all the circumstances of this case, even if there had been a Charter breach, the appellant’s confession would not have been excluded.

R. v. Saretzky, Alberta Court of Appeal, P.W.L. Martin, P.A. Rowbotham and J. Strekaf JJ.A., November 24, 2020. Digest No. TLD-January42021002