Murder during unlawful confinement, detention and right to a lawyer

 

This week on Legally Speaking with Michael Mulligan:

In Canada, murder can be either first or second degree. A conviction for either kind of murder results in a mandatory life sentence. With first-degree murder, however, a person must wait 25 years before they can even ask for parole. For second-degree, the judge can decide how long someone would need to wait before being allowed to ask for parole, from 10 to 25 years.

The most common murder can become first-degree is when the murder is planned and deliberate.

There are other ways murder can become first-degree, even if it isn’t planned. These include the murder of a peace officer, murder committed for a criminal organization, in the courts of a terrorist act, or while committing various serious crimes such as sexual assault or kidnapping, or unlawful confinement.

In the first case discussed on the show, the Supreme Court of Canada concluded that the murder of a rival drug dealer should have been first-degree.

The fact pattern in the case involved the murdered drug dealer being confined in a speeding truck by three other drug dealers. When the truck slowed down, the drug dealer who was being confined in the truck jumped out and tried to run away. He was shot by the accused while he was running away and then shot several more times, killing him.

The Supreme Court of Canada concluded that, even though the deceased drug dealer had managed to jump out of the truck and run away some distance, the murder was still in the course of unlawful confinement and, as a result, should be categorized as first-degree.

Also on the show, and in keeping with the theme of detention, the Supreme Court of Canada concluded that a young aboriginal man’s right to retain and instruct counsel had been breached when the police took him back to the police station to be interviewed for three hours, without telling him about his right to talk to a lawyer, after a team of police officers attended to his house to execute a search warrant.

In Canada, the police have a constitutional obligation to tell someone about their right to a lawyer when they arrest or detain someone. If the person asks to talk to a lawyer, the police are obliged to stop asking questions or attempting to gather evidence from the person until they have been given a reasonable opportunity to talk to a lawyer.

As occurred in the case discussed, police will sometimes attempt to get a suspect to come to the police station for an interview without arresting the person to avoid telling them about their right to a lawyer because a lawyer is likely to tell a suspect in a criminal investigation not to talk to the police.

In the circumstances of the case discussed, including the fact that the police drove the suspect to the police station after showing up at his house to execute a search warrant, the Supreme Court of Canada concluded that the young man had been detained and his right to counsel had been breached.

The Supreme Court of Canada also concluded that when the police subsequently arrested the young man, they breached his right to counsel again by not permitting him to call his father to get help arranging for a lawyer. The police refused the request because the young man had previously phoned legal aid and had a very short conversation during which he was told that he should hire a lawyer.

In Canada, a person who is arrested or detained is not restricted to a single phone call. They must be provided with a reasonable opportunity to retain and instruct counsel and, if they are being reasonably diligent, this may require multiple phone calls, access to phone directories, or even contacting someone, like a parent, to help arrange for a lawyer.

 

Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 am. It’s also available on Apple Podcasts or wherever you get your podcasts.