BC's top court has ruled that a remand in custody wasn't a new "non-routine" procedure requiring the detainee be readvised of their right to counsel.
In R. v. Bhander, 2012 BCCA an accused was arrested for one count each of murder and attempted murder following a shooting. He was deliberately arrested on a Friday to be held in custody over the weekend, advised of his right to counsel and silence and taken to a police station. He spoke to counsel on the phone and also had a 40 minute face-to-face meeting with a lawyer at the station. Counsel told police he wanted to speak again with Bhander if charges were laid.
Police asked Bhander if he had received and understood the legal advice provided and he said he did. Police tried to conduct a short interview with him but he repeatedly invoked his right to silence and said any questions should go to his lawyer.
On the following day (Saturday), Bhander was charged only with first degree murder. His lawyer participated in the remand hearing and asked that Bhander go to the Surrey Pre-trial Centre pending his court appearance on Monday. The JJP found he had no jurisdiction to direct the location of custody over the weekend but recommended that he be held at the centre. Police made no effort to comply.
Shortly after the hearing police interviewed Bhander for 4 hours and 15 minutes. His lawyer's articling student was present and asked to see Bhander to provide further legal advice. Police refused his request.
Bhander's counsel tried to arrange a meeting with him Sunday by leaving a message with police but did not receive a call back. Bhander also asked the jail guard if he could call his lawyer to "make sure he's at court tomorrow" but wasn't given an opportunity to do so. On Sunday evening Bhander was interviewed again for 2 ½ hours. He initially exercised his right to silence but, when shown some evidence, including a set of keys found at the scene, began to give an account of the shooting and admitted he had shot the deceased. Before the confession Bhander said, "And it's going against for what my lawyer told me to do and stuff like that, right?"
A British Columbia Supreme Court judge noted that the arrest was made on Friday so police could "optimize their ability to coordinate resources and undertake various investigative procedures" while Bhander was in custody but found no Charter violations and admitted the confession. A just convicted Bhander of second degree murder.
Bhander challenged the ruling to the BC Court of Appeal arguing, in part, that the confession was obtained following Charter breaches, including ss. 9 and 10(b), and should have been excluded under s. 24(2).
s. 10(b): Change in jeopardy
Bhander asserted that being charged with first degree murder and remanded in custody was an "objectively observable" change in jeopardy, requiring a renewed right to speak to a lawyer. The court disagreed. There was no change in circumstances that required a further opportunity to consult counsel. Bhander had been arrested for murder and attempted murder and charged with first degree murder. This did not alter or elevate the general nature of the jeopardy he faced. "The fact of the remand order did not change (the accused's) jeopardy from that for which he was arrested," said Justice Saunders for the court.
s. 10(b): New non-routine procedure
Bhander submitted that he was subjected to a new "non-routine" procedure when remanded which required a renewed right to speak to a lawyer, but the remand wasn't such a new "non-routine" procedure involving a detainee, like a polygraph examination or participation in a line-up. His detention expectations may have changed but this did not support a renewed right to counsel.
s. 9 Charter: Arbitrary detention
Bhander said he was arbitrarily detained when police continued to question him after the judicial remand and made no attempt to move him to the pre-trial centre as recommended by the JJP. The appeal court also rejected this submission. Police did not violate any terms of the remand order – it authorized further detention without specifying the location. Bhander's position regarding the investigation was the same before as after the remand order so it did not trigger a fresh right to counsel.