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)