Wednesday, October 13, 2010

SCC Narrows the Scope of Right to Counsel

In R. v. Sinclair, 2010 SCC 35 the Supreme Court narrowed the scope of s.10(b) of the Canadian Charter of Rights and Freedoms determining that it, “does not mandate the presence of defence counsel throughout a custodial interrogation”. In a 5-4 decision Chief Justice McLachlin and Justice Charron wrote for the majority, concluding, “that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b)”.

The majority went on to clarify that a request to consult counsel, after the initial conversation, is not sufficient to re-trigger the s.10(b) right without a change in circumstances suggesting that the choice faced by the detainee has been significantly altered. Such, “changed circumstances may result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the detainee may not have understood the initial advice of the right to counsel.”

The danger, raised here by the minority as written in two separate dissents is twofold. First as Justice Binnie explains:

“What now appears to be licenced as a result of the “interrogation trilogy” — Oickle, Singh, and the present case — is that an individual (presumed innocent) may be detained and isolated for questioning by the police for at least five or six hours without reasonable recourse to a lawyer, during which time the officers can brush aside assertions of the right to silence or demands to be returned to his or her cell, in an endurance contest in which the police interrogators, taking turns with one another, hold all the important legal cards.”

Justice Binnie goes on to suggest that the breach of Mr. Sinclair’s Charter right did not occur at the outset of the interrogation, but later on, after several hours of interrogation. When new evidence was presented to Mr. Sinclair and he made five separate requests to speak with his counsel, he was clearly unsure as to whether the advice he had received was still sound. Under s. 10(b), a six-minute phone call at the outset of the investigation cannot have effectively counseled Mr. Sinclair regarding the interrogation involved in a second-degree murder charge. As the situation evolved, the advice of counsel may have changed, and the inability of counsel to acquire that information by being present clearly hinders his or her ability to provide advice to the client.

Justice Binnie outlines an alternative set of justifications for additional consultation with counsel in objective factors such as: the extent of prior contact with counsel; length of the interview at the time of request; extent of information provided by the police which may reasonably suggest that the advice provided in the initial consultation may have been overtaken; existence of exigent or urgent circumstances which prevent delay in the interrogation; a legal issue arising in the course of the interrogation; and the mental and physical condition of the detainee as is or ought to be apparent to the interrogator.

A second dissent delivered by Justices LeBel and Fish raised a concern regarding the effectiveness of s. 10(b) if it is to be invalid at the precise moment it was intended to provide protection. The dissent suggests:

“It [s. 10(b)] is not just a right to the assistance of counsel, but to the effective assistance of counsel, and one that this Court has characterized as a principle of fundamental justice. This right has not been granted to suspects and to persons accused of crime on the condition that it not be exercised when they are most in need of its protection — notably at the stage of custodial interrogation, when they are particularly vulnerable and in an acute state of jeopardy.”

When a short consultation is followed by a lengthy interrogation it is reasonable to expect that the detainee may believe that attempting to maintain his or her right to silence is futile. That he or she may feel it necessary to make a statement when presented with incriminatory evidence by the police; a statement to which the police are not entitled.

Do you think this will open the door to excessively aggressive interrogation techniques by police?

Should Parliament step in to create a legislated right to counsel throughout interrogation? Is this likely?

Posted by Pamela Santora (Windsor Law I)


  1. Very well-written blog, Pamela!

    I think the police need to use many means necessary to find the truth of situations, I'd think that's the purpose of an interrogation...but entering into this endurance contest to see who will cave first seems like the interrogators are attempting to get out of the accused that which may, or may not, have happened. I feel that this could coerce an accused to give confessions just to end the misery, be it true or not, and this would be exacerbated by the lack of available counsel. This would certainly be foolish, but given the circumstances of being forced to sit in a small room for 6 hours while being bombarded with questions, people may cave in.

    As per Parliament's changing of legislature to allow the right to counsel throughout interrogation, I'm not convinced...I feel this could be obstruction of interrogation if counsel instructs the accused on what to say or what not to say.

    Interesting debate!

  2. I would have to agree with the aforementioned point in that an accused may be coerced to give confessions just to end the misery... I would also like to add that although legal procedure stipulates that the accused must be read his rights at the time of arrest, in many cases this is not enough and should be held as being far different from facilitating the process by which those rights are acted upon/implemented. This is most apparent when it is stated: “an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right” is sufficient and that police need not “hold off” on further questioning just because a suspect indicates he or she wants to speak with counsel.”

    One should also consider the power imbalance between law enforcement and members of the public. This power imbalance is not just of a legal and political nature but when analyzed through a sociological lens, one discovers that the accused, especially one who faces language and/or other barriers, would be inadvertently but severely affected by such interrogation. Moreover, I feel as if the ruling in this case and the comments above, with all respect, align themselves with themes of efficiency and productivity; which are tenets of a crime-control philosophy of justice not conducive towards preserving and cherishing the rights of the accused to the extent that the justice system is capable of. As the CCLA argued, “it is necessary to give suspects access to a lawyer upon request in order to help reduce the likelihood of miscarriages of justice”

    Accessibility to counsel is also important in that many accused individuals, although may be away of their rights (or may have merely have been read them by the officer) may not be able to determine the application of these rights in the situation that they have found themselves in. The purpose of Section 10(b) as explicitly indicated is “to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation.”

  3. Great blog.

    It's quite possible that police may take advantage of this ruling by dragging interrogations out as long as they can without the presence of counsel; however, individuals who are accused of an offence still maintain the right to remain silent. Most lawyers will stress this right to their clients and urge them not to answer any questions. Aggressive police interrogations are not unheard of in the past (prior to this ruling). There have been cases where confessions or evidence attained through these questionable techniques were considered inadmissible at trial. In terms of any issues that arise (i.e. infringing Charter rights) during police interrogations, I would like to believe that they would be adequately addressed by the courts.

    Considering it was 5-4 decision demonstrates that it is a highly debatable case that could have easily gone the other way.