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CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Legal rights - Right to retain and instruct counsel without delay

Thursday, March 01, 2018 @ 8:35 AM  

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Appeal by the accused, Duerksen, from a voir dire ruling concluding no violation of his right to counsel occurred. The accused and another individual cornered the complainant in a shed on the complainant's property. Their objective was to tie the victim up and take him for a ride to sufficiently scare him into having his family pay a multi-million dollar ransom. The complainant attempted to escape. The accused's accomplice administered a severe beating to the complainant. The pair drove the complainant to a nearby park, tied him to a tree and left. The accused telephoned police the following day and advised he would turn himself in after consulting with a lawyer. The accused was arrested a short time later by another officer. Upon being read his rights, the accused indicated he wished to consult a lawyer. Contact with Legal Aid was facilitated at the detachment. A detective re-read the accused his Charter rights after a charge of robbery was added. The accused declined further legal consultation and agreed to an interview just before dawn. During the four-hour interview, the accused repeatedly asked for a lawyer that was better than Legal Aid. He eventually discussed details of the incident. Consultation was arranged following the initial interview and prior to a follow-up interview in which the accused admitted to his involvement in the offence. Following a voir dire admitting the accused's statements, the accused agreed to convictions on three counts without prejudice to his right to appeal the voir dire ruling.

HELD: Appeal dismissed. The burden was on the accused to prove a breach of his s. 10(b) Charter rights rather than upon police to preserve evidence of their interactions. The accused failed to lead sufficient evidence on the voir dire regarding the provision of Legal Aid counsel, and thus failed to establish that police did not provide him with a reasonable opportunity to consult counsel. In concluding that the accused subsequently waived his right to counsel, the trial judge's slight inaccuracy in reciting the evidence did not give rise to a reviewable error. The accused understood the extent of his jeopardy and the consequences of waiving his right.

R. v. Duerksen, [2018] B.C.J. No. 181, British Columbia Court of Appeal, R.J. Bauman C.J.B.C, M.V. Newbury and J.J.L. Hunter JJ.A., February 6, 2018. Digest No. TLD-February262018010