Welcome to “Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!”
In this episode, Kyla Lee from Acumen Law Corporation discusses a case involving an Indigenous woman arrested in a complex murder investigation. During a lengthy police interrogation, she repeatedly asked to speak with counsel again after already having received legal advice earlier in the process. The law currently holds that a second consultation with a lawyer is only required if there’s a significant change in circumstances. But this case raised a crucial question: should that legal framework shift when applied to Indigenous accused persons who face systemic barriers and power imbalances within the justice system? The Supreme Court of Canada declined to hear the case—missing a critical opportunity to address this issue in a meaningful way.
Key Points Discussed
– The accused, an Indigenous woman, was interrogated at length in a complex murder investigation.
– She had already spoken to a lawyer, but repeatedly asked to speak to one again during the interrogation.
– Current law only requires renewed access to counsel if there’s a significant change in circumstances.
– The defence argued that her Indigenous identity, and the systemic disadvantages it carries, should have informed the right to speak with counsel again.
– The Supreme Court of Canada denied leave to appeal.
Why This Case Matters
Indigenous individuals face systemic disadvantages at every stage of the criminal justice system. They are overrepresented as accused persons, more likely to be unrepresented or underrepresented, and less likely to have meaningful legal support. Applying a uniform legal standard without regard to these systemic inequities ignores the lived realities of many Indigenous people.
This case raised the question of whether the Charter right to counsel should be interpreted differently where a clear power imbalance exists—and whether meaningful access to legal advice requires more than a one-time phone call.
Missed Opportunity for a National Standard
The Supreme Court could have taken this opportunity to develop a more equitable legal framework for access to counsel in police interrogations involving Indigenous individuals. A revised approach could have included:
– Recognition of systemic and cultural factors that impact the effectiveness of a single consultation
– Guidance on when additional access to legal advice should be presumed necessary
– A contextual approach to “change in circumstances” where power imbalances are evident
– Practical recommendations for police in dealing with vulnerable or marginalized accused persons
Need for Clarity and Accountability
The Supreme Court has acknowledged the importance of reconciliation and the implementation of the Truth and Reconciliation Commission’s recommendations. But jurisprudence must evolve to reflect that commitment. Without clear direction, the legal system continues to apply rules in ways that fail to account for systemic disadvantage—further deepening the gap in justice outcomes for Indigenous people.
Topics Covered
– Right to counsel under section 10(b) of the Charter
– Systemic disadvantage and Indigenous accused persons
– Police interrogation and power imbalance
– Truth and Reconciliation Commission recommendations
– Evolving standards for meaningful access to legal advice
