R. v. Feeney

[1997] 2 S.C.R. 13



Right to Counsel



Per Sopinka J., La Forest, Cory, Iacobucci and Major JJ. concurring: at "� 56 The requirement that a person be informed of his or her s. 10(b) rights begins upon detention or arrest. According to R. v. Therens, [1985] 1 S.C.R. 613, 18 C.C.C. (3d) 481, 18 D.L.R. (4th) 655, detention under s. 10 of the Charter occurs when a peace officer assumes control over the movement of a person by a demand or direction. In the case at bar, upon entering the trailer with gun drawn, the police officer shook the appellant's leg and told him to get out of bed. I agree with the appellant that detention began once the officer touched the appellant's leg and ordered him to rise. The appellant was not given any caution at this time. Only after the appellant had been escorted to the light, where the blood stains were seen, and was placed under arrest was any information regarding counsel provided. In my view, the appellant had his s. 10(b) rights violated at the time of his initial detention. [page161] "..." In the case at bar, the appellant was not given adequate opportunity to secure counsel. He was not given access to a telephone before being questioned; the police gave him the caution in the trailer, where no telephone existed. The police simply asked him whether he understood his rights, to which he replied, "Of course, do you think I am illiterate," or words to that effect, and then proceeded to ask him questions about the blood on his shirt and his shoes. The appellant's s. 10(b) rights were violated by these police actions. � 58 While the trial judge found a violation of the appellant's s. 10(b) rights only after he had been taken to the Williams Lake detachment, in my view these rights were violated from the moment of detention forward. The appellant was not cautioned in any way when he was first detained, and the caution that was eventually given did not satisfy the informational requirements of s. 10(b). Furthermore, the appellant was not given an adequate opportunity to consult with counsel before being questioned. For these reasons, in my view, the statements taken in the trailer (the appellant claimed that he had been hit in the face with a baseball the previous day and stated that he only owned one pair of shoes) were taken in violation of the Charter.