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

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