An arrestee may be watched by authorities when calling their lawyer provided they do not reasonably believe their conversation can be overheard.
In <R. v. Coaster, 2014 MBCA 108> police identified the accused, a member of the Native Syndicate gang, as one of several suspects involved in the beating death of another inmate at Stony Mountain Institution. Coaster was a maximum security prisoner and was also charged with second degree murder in an unrelated shooting death.
Police arranged to interview him at his institution. He was taken to an interview room by a correctional officer and police told him he would be charged with either manslaughter or second degree murder, depending on the Crown’s review of the evidence. He was advised of his rights, including the right to consult with counsel “in private,” and indicated he wanted to speak to his lawyer.
He was taken to an office with a phone but told the door would remain open so the correctional officer could keep him in sight yet remain out of earshot. He was also told he should keep his voice down so there was no chance he would be overheard. The door to the telephone room was left open about eight inches, but the correctional officer was 10 feet away across the hallway. Police officers remained in the interview room with the door closed and could not hear Coaster.
Before the interrogation began, Coaster told the investigator he had spoken to his lawyer. During the 45 minute interview that followed, Coaster admitted to striking the victim a couple of times in the jaw while he lay unconscious on the floor bleeding from the mouth. He was subsequently charged with second degree murder.
In the Manitoba Court of Queen’s Bench, Coaster testified that he believed the correctional officer would try to overhear him. He also said that he could hear voices of prison staff through the open door so he saw no point in keeping his voice down. He also testified that he was unable to reach his lawyer. He then decided to make an unauthorized call to his ex-girlfriend, which was unsuccessful, and then lied to the investigator about speaking to his lawyer.
The judge concluded that <s. 10(b)> of the Charter had not been infringed. Although the door was not completely closed and a correctional officer was within eyesight of Coaster, there was no evidence anyone overheard his conversation. Furthermore, his behaviour in calling his ex-girlfriend, along with the set-up for his consultation with counsel, suggested his conversation was not overheard. He was convicted of manslaughter.
Coaster appealed his conviction to the Manitoba Court of Appeal arguing, in part, that he was not given reasonable privacy in exercising his right to counsel. He submitted that his <s. 10(b)> right was breached because he was not alone — but under the watch of a correctional officer — while exercising his right to retain and instruct counsel prior to giving his statement.
Justice Mainella, speaking for the court, explained that “the right to privacy, so far as circumstances permit, is inherent in the right to retain and instruct counsel without delay guaranteed by s. 10(b) of the Charter.”
The level of privacy afforded to a detainee will be unreasonable where an actual invasion of privacy has been established such that police overhear a detainee’s conversation.
There were, however, different legal approaches in assessing the reasonableness of privacy short of an actual invasion. Mainella preferred a broader and more flexible approach such that the analysis would focus on reasonableness from the detainee’s perspective, rather than the auditory abilities of the police. Thus, a <s. 10(b)> infringement could result where there was a reasonable belief (subjective/objective considerations) by the detainee that they could not speak to counsel in private, unless the Crown demonstrates otherwise (ie. the detainee did, in fact, speak to counsel in private).
Of course, where the detainee unreasonably believes, in the totality of the circumstances, that police may overhear their conversation, there would be no <s. 10(b)> breach.
Coaster was afforded reasonable privacy. First, there was no actual invasion — neither police nor the correctional officer could hear Coaster’s telephone conversation. Second, Coaster’s act in phoning his ex-girlfriend — an unauthorized call — demonstrated he did not have a reasonable belief that his conversation could be overheard.
The trial judge stated and applied the correct legal principles and appropriately considered the totality of the circumstances. The appeal was dismissed.
NOTE
Coaster was serving a federal sentence and was charged with second degree murder when he was involved in the beating.
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