Isabelle Bouchard

The accused was arrested on charges of murder and arson and spoke with counsel by telephone at the police station.

The lawyer indicated he was coming to meet the accused in person; the officer's ambiguous response led both the lawyer and the accused to believe the in-person meeting would occur.

Police subsequently refused to allow counsel to meet the accused and conducted an interrogation during which the accused made an incriminating statement while repeatedly expressing confusion about his lawyer's absence.

The SCC held that, in these unique circumstances, the police were required to provide a further opportunity to consult counsel before questioning, as two acts by the officer had the combined effect of undermining the legal advice received, triggering a renewed right to counsel under s. 10(b) of the Charter.

The appeal was dismissed and the exclusion of the statement under s. 24(2) was upheld.

The Crown appealed a Quebec Court of Appeal decision ordering a new trial on certain counts after the trial judge admitted, by consent of both parties, a transcript of testimony given at a first trial into a second trial commenced under s. 669.2(3) of the Criminal Code.

The Court of Appeal had required a two-part inquiry into the voluntariness of the accused's consent and the fairness of admitting prior testimony.

The Supreme Court held that s. 669.2(3) concerns jurisdiction, not evidence, and does not require any such statutory inquiry where parties have consented to filing prior testimony.

The presumption of competence of counsel applies, and absent indications vitiating consent, the judge need not intervene in counsel's tactical decisions.

The judge retains residual discretion to inquire where indications suggest consent is vitiated or trial fairness is undermined.