Should Prosper Warnings Be Given to Non-Diligent Detainees Who Waive the Right to Counsel?

Criminal Reports (7th), vol. 39, p. 33 (2017)

18 Pages Posted: 15 Dec 2017

See all articles by Steven Penney

Steven Penney

University of Alberta - Faculty of Law

Date Written: December 7, 2017

Abstract

In R v Fountain, the Ontario Court of Appeal grappled with an issue that has vexed courts for over three decades: how to define and apply the “reasonable opportunity” that police must afford detainees to exercise their right to counsel under section 10(b) of the Charter. As many commentators have observed, the jurisprudence on this question is troublingly inconsistent. It has also been complicated by the Supreme Court of Canada’s directive in R v Prosper, which requires police to issue a special caution to detainees who invoke the right to counsel but later purport to waive it. That warning informs detainees that they are entitled to a reasonable opportunity to contact a lawyer and that police are obliged to “hold off” from questioning them or inducing other self-incriminating evidence until that opportunity expires. However, as did the Ontario Court of Appeal in Fountain, most courts have held that police need not give this “Prosper warning” to detainees who have failed to diligently pursue their opportunity to talk to counsel.

This short article critiques that jurisprudence, arguing that Prosper warnings should be given to all detainees who “change their minds” about contacting a lawyer. Because the due diligence standard is so indeterminate, the current approach needlessly denies detainees the benefits of the Prosper warning without significantly advancing any legitimate law enforcement interests, such as obtaining reliable, self-incriminating evidence in the search for truth.

Keywords: Charter, s. 10(b), right to counsel, Prosper warning, reasonable opportunity, waiver

Suggested Citation

Penney, Steven, Should Prosper Warnings Be Given to Non-Diligent Detainees Who Waive the Right to Counsel? (December 7, 2017). Criminal Reports (7th), vol. 39, p. 33 (2017). Available at SSRN: https://ssrn.com/abstract=3084291

Steven Penney (Contact Author)

University of Alberta - Faculty of Law ( email )

Law Centre
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

HOME PAGE: http://www.ualberta.ca/law/about/contact/profiles/steven-penney

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