prosper.docx

Prosper Warning A police officer will have occasions to arrest and/or detain persons during their career.  When this takes place, the officer must refer to the Canadian Charter of Rights and Freedoms and: Inform the party promptly for the reasons of the arrest or detention (10a); and Inform the...

Prosper Warning A police officer will have occasions to arrest and/or detain persons during their career.  When this takes place, the officer must refer to the Canadian Charter of Rights and Freedoms and: Inform the party promptly for the reasons of the arrest or detention (10a); and Inform the party they have the right to retain and instruct counsel without delay 10(b). Recruits at the Ontario Police College are taught to read Section 10(a) and 10(b) to the arrested or detained person from service provided cards or from their duty notebooks.  This is an imperative start to the process adhering to the Charter of Rights. Responses to 10(a) and 10(b) from arrested and/or detained persons can be diverse.  The specific response verbatim needs to be captured for an evidentiary purpose.  The response dictates how the officer will proceed with the investigation.  If an accused’s rights or freedoms guaranteed by the Charter of Rights are infringed or denied, the evidence may be excluded.  The responsibility is on the police to ensure these rights are obtained and understood.    A 1994 Supreme Court of Canada case to note is R vs Prosper.   In this case, two police officers observed Cyril Prosper driving a stolen car erratically. Eventually police apprehended him after a foot chase.  Mr Prosper had many physical signs of impairment subsequently leading the officers to form the reasonable grounds to arrest him.  He was arrested for impaired operation and theft of the vehicle (10a). He was advised of his legal right to retain and speak to counsel, as well as being able to speak to duty counsel (10b).    Back at the station, Mr. Prosper was provided a list of lawyers.   When the search was unsuccessful from this list, he was given a telephone book so he could continue looking.  After some time, Cyril Prosper declined to call lawyers in a private practice because he was concerned he could not afford their services.  He then agreed to take a Breathalyzer.  At trial, the defense argued his client’s 10(b) rights had been infringed, wanting the Breathalyzer results excluded from evidence under 24(2) of the Charter of Rights.  The crux of the argument was that Cyril Prosper may not have known it was his right to instruct counsel and he may have waived that right too easily.  The Justice ruled in favour of the defense; subsequently, the Breathalyzer results were excluded.  This matter was appealed by the Crown, eventually making its way to the Supreme Court of Canada.  This Supreme Court ruled for Cyril Prosper. In the findings it found that if an accused asserts a right to counsel, later followed by an equivocation or changes his mind, the police must ascertain the accused truly understands his rights.  The “meat and potatoes” of this ruling were: After the accused has been read section 10(b) the accused requests to speak to a lawyer; If the accused has been reasonably diligent in exercising his or her right; Then changes his or her mind and no longer wants legal advice; The police then, in addition to, must tell the accused he or she has a right to a reasonable opportunity to contact a lawyer; It is further incumbent on police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity; and Further police will advise party that the investigation will not continue until their 10(b) right has been exercised. This additional information provided to the accused safeguards that the detainee wanting to waive the right to counsel understands what it is that he or she is actually giving up.  The accused party need not arbitrarily give up their right to counsel because they become frustrated, cannot afford a lawyer or cannot locate the lawyer of their choice.  The accused party needs to know they do have reasonable opportunity to speak to any lawyer of their choice.  This ruling is known as the Prosper Warning.  To re-iterate, when an accused or detainee changes their mind when asserting their right to speak a counsel, the police must: Tell the accused he or she has a right to a reasonable opportunity to contact a lawyer; Police must not take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity; and Police will advise party that the investigation will not continue until their 10(b) right has been exercised.   Police must ensure that the accused or detainee’s decision to waive his/her right to counsel is fully informed because if it is not, all evidence subsequent could be excluded.  The officer needs to document all phone numbers called, messages left, and all other pertinent information in efforts to contact counsel. This is very important when the court considers whether the steps taken to facilitate counsel of choice were reasonable.  Further, when waiting for a return call from counsel, an officer must consider what is reasonable.  Things to consider can be time of day, seriousness of the offence or availability of counsel at the time.  There is no error in re-advising the party of free legal aid duty counsel and asking if the party wishes to speak to duty counsel.  When doing this, there must not be any perception of funnelling the accused to duty counsel or any other counsel.  After a party has been provided his 10(b) Charter of Rights, and later changes his mind or equivocates after he has asserted his right, the Prosper warning is engaged and the officer must ensure the party is aware of his choices.  Conversation officers could have with the party could be: Officer: “Earlier when I spoke to you and read you your right to speak to a lawyer you said “yes.”  Now you are saying no.  Do you understand everything I have said to you?  Further, I want you to know we will not carry on our investigation until you have exercised your rights”; or Officer: “Here are your options: you can call a different lawyer of your choice or you can have a free lawyer from duty counsel.  Further, I want you to know we will not carry on our investigation until you have exercised your rights.” This conversation is likely to be long and complex, and at times might seem rambling.  Using a series of questions to confirm he understands his right is appropriate.  The officer must capture the conversation in its entirety.  If the party waives his right to call a lawyer, he must understand the right that is being waived.  If necessary, more involved discussion is needed.  The officer is not to contact duty counsel for an easy out. It is not that simple.   There is no hard and fast rule to articulate what is reasonable when waiting for counsel to call back.  Every situation is a different circumstance, but the bulk of a Charter argument often weighs on the seriousness of the breach.  If an officer has no knowledge of the Prosper Warning and is challenged, all evidence will likely be excluded, as courts view this as being “an ignorance of the law.”  To the contrary, if the officer has knowledge of the Prosper Warning and is doing his best to allow the party his constitutional right, this will likely weigh better for the officer.