Canadian Appeal Court considers scope of the right to legal counsel

R v JWC, 2011 ONCA 550 (10 August 2011)


This is an unusual criminal law case in which the only evidence against the defendant, JWC, was a statement he made to police in which he confessed to numerous sexual assaults of a number of patients in his care while working at various group homes for people with disabilities.

JWC was convicted of 14 sexual offences and on appeal argued, amongst other things, that his statement had been obtained in a manner which violated his right to counsel and as such the statement should never have been admitted as evidence. The Ontario Court of Appeal dismissed the appeal.


In 2000, JWC was diagnosed with mental health problems arising from a bipolar disorder. Initially his condition responded to medication, but by September 2003, his condition had deteriorated to the extent that he was voluntarily admitted to a psychiatric unit.

On 1 October 2003, whilst still in psychiatric care, JWC rang the police and advised that he wanted to confess to sexual offences he had committed in the past. Later that day, he was taken to the local police station for interviewing following advice from his treating psychiatrist that although he suffered from bipolar disorder he "was of sound mind" and there was no reason he should not be allowed to be interviewed when he had called the police himself.

JWC was informed of his right to counsel both on the way to the police station and at the commencement of the interview. He did not exercise this right. He then provided a statement to police in which he stated he had sexually assaulted a number of patients who were in his care when he worked at various group homes for persons with disabilities. The alleged victims were subsequently identified and he was charged with a number of sexual offences.

Essentially, the Crown's case depended upon on the statement made by JWC, as there were never any complaints of wrongdoing against JWC in the various group homes he had worked in and the victims were developmentally handicapped and largely unable to communicate so they did not testify at trial.

At the trial, JWC denied the content of the statement was true and argued against its admissibility. He testified that prior to 1 October 2003, he had begun to hear voices which told him that he was a 'bad guy' who had committed sexual offences and should be punished. He claimed that while he understood he could call a free lawyer at the time of the interview, he did not know how to do so and could not stop the interview to work this out because the voices in his head told him not to.

Ultimately, the statement was admitted and JWC was convicted of 14 sexual offences. He appealed to the Court of Appeal and argued, amongst other things, that his right to legal counsel under section 10(b) of the Canadian Charter had been breached and as such his statement should have been excluded.


The Court applied the framework for analysis of section 10(b) claims set out in the recently decided Sinclair trilogy. In particular, it noted there are two components of the right to counsel:

  • the informational component (that is, what the police must tell a detainee about the right to consult counsel); and
  • the implementation component (that is, the duty to hold off questioning until the detainee has had a reasonably opportunity to consult with counsel).

As there was no argument the informational component had not been complied with, the Court considered whether the police were required to ensure JWC had actually waived his right to counsel before proceeding with the interview, rather than simply assuming he had when he did not request time to consult counsel.

The Court held there would be circumstances in which the police may be required to provide a detainee with a further opportunity to consider whether to exercise their right to counsel before they can be satisfied the right to counsel has been waived. The Court gave examples such as where the detainee did not realise the jeopardy he or she was in or where there is reason to question the detainee's understanding of the right to counsel as the interview continues.

However, even taking into account JWC's psychiatric condition, the Court held there was no evidence to indicate JWC did not understand he had the right to immediately consult counsel if he wished to do so. This was particularly so given JWC's treating physician had advised it was appropriate for him to participate in the police interview he sought. Further, this was not a situation in which JWC, the detainee, was uncertain about the nature of the allegations against him and then expressed uncertainty about whether to contact counsel. Instead, this was a case in which it was the detainee, and not the police, who had the exclusive knowledge and control over the information about the abuse he alleged he had committed.

Relevance to the Victorian Charter

Unlike the Canadian Charter, the Victorian Charter does not contain an express right to legal counsel when being detained for questioning before charges have been laid. Instead, section 25 of the Victorian Charter provides that a person charged with a criminal offence is entitled to communicate with legal counsel.

In Victoria, the protection set out in the Canadian Charter is afforded under section 464C of the Crimes Act 1958 (Vic) which provides that an investigating official must inform a person they have a right to communicate with legal counsel prior to questioning. This decision may provide a useful, albeit non-binding, framework for judicial consideration of the content of that right.

The decision can be found online at:

Susanna Kirpichnikov and Zara Durnan are lawyers at Lander & Rogers and former secondees to the Human Rights Law Centre.