Interrogating the Charter: What is the Extent of the Right to Counsel? R v Sinclair
Section 10(b) of the Charter states that, “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” In its recent decision, R v Sinclair,  2 SCR 310, a majority of the Supreme Court of Canada (“SCC”) held that s. 10(b) does not mandate the presence of defence counsel through a custodial interrogation.
The facts giving rise to this decision involve the interrogation of Mr. Terrence Sinclair. Sinclair was arrested in Vernon, British Columbia, at approximately 6:30 AM on December 14th, 2002 for the murder of Mr. Grice. Upon arrest, he was informed of his right to retain counsel. He indicated that he did not wish to speak to a lawyer right that second. After being booked in to the attachment, Sinclair was allowed to contact the lawyer of his choice. He spoke to that lawyer for approximately three minutes. Approximately two hours later, Sinclair spoke to the lawyer again for another three minutes. At 4:38 PM that day, Sergeant Skrine began a video interview or interrogation of Sinclair. During the course of the interrogation, Sinclair stated on a number of occasions that he had nothing to say on matters touching the investigation and wished to speak to his lawyer again. Skrine confirmed that Sinclair had the right to remain silent; however he refused to allow Sinclair to consult his lawyer again, his duty to counsel had been exercised. Additionally, he informed Sinclair that he was not entitled to have his lawyer present during questioning. During the course of the questioning, which lasted between four-and-a-half to five hours, Sinclair implicated himself in the murder. At the end of the interview, the police placed Sinclair into a cell with an undercover officer, where he made further inculpatory statements to that officer. Sinclair later accompanied the police to the location where the victim had been killed and participated in a re-enactment.
The Judicial History
Following a voir dire, the trial judge ruled that the interview, the exchange with the undercover officer, and the re‑enactment were admissible. The trial judge found that the Crown had proven voluntariness (of the confession) beyond a reasonable doubt, and that the police had not infringed Sinclair’s rights as guaranteed by s. 10(b) of the Charter. Sinclair was convicted of manslaughter.
On appeal to the British Columbia Court of Appeal, Sinclair contested the trial judge’s finding that his s. 10(b) Charter right had not been violated. He argued that s. 10(b) of the Charter imposes a duty on the police to discontinue questioning a detainee who has exercised the right to counsel when the detainee indicates a desire to speak with counsel again. He further added that s. 10(b) requires the police to respect a detainee’s request to have counsel present during a custodial interrogation. A unanimous court dismissed Sinclair’s appeal and reaffirmed his conviction.
The Majority Decision of the Supreme Court of Canada: Miranda Rule Denied!
A bare majority of the SCC (McLachlin C.J. and Deschamps, Charron, Rothstein and Cromwell JJ.) held that s. 10(b) of the Charter does not mandate the presence of defence counsel throughout a custodial interrogation. In effect, the majority’s decision rejects the rule adopted by the United States Supreme Court in Miranda v Arizona, 384 US 436 (1966) [Miranda]. In Miranda, the following sweeping proposition is adopted:
The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today (para 469). [Emphasis added]
In reaching this decision, the majority defined the purpose underlying s. 10(b) in the context of a custodial interrogation as “providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not” (para 2). Advising the detainee of his right to counsel coupled with a reasonable opportunity to consult counsel when the detainee invokes the right satisfies this purpose. The continued presence of counsel throughout the interrogation is not demanded. Additionally, a request to consult counsel during the interview is not sufficient to re-trigger the s. 10(b) right. The right will be retriggered only when an objectively observable change in circumstances suggest that reconsultation with counsel is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The situations where a second consultation with counsel is required include: new procedures involving the detainee (ie. non-routine procedures such as line-ups or polygraph tests); a change in jeopardy (ie. the initial advice is no longer adequate to the actual situation, or jeopardy, the detainee faces as the investigation unfolds); and reason to question the detainee’s understanding of his s. 10(b) right. The majority acknowledged that this list of situations is not closed.
Applying the law to the facts, the majority dismissed Sinclair’s appeal. His s. 10(b) rights had initially been fulfilled by the police informing him of his right to counsel and his following consultations with his lawyer. The facts of his case did not place him any of the situations that would give rise to a second consultation. The possibility that he did not understand his s. 10(b) right was eliminated due to the trial judge’s findings of fact that Sinclair never had any doubt about the choices the law allowed him, particularly his right to remain silent.
The Dissent: “I want to speak to my lawyer NOW – not TOMORROW”
The minority decision of Lebel, Fish and Abella JJ. defined the purpose and scope of s. 10(b) differently from the majority, and this definition guided their analysis in a completely opposite direction of the majority, revealing a rather full friction between the dispositions. The dissenting opinion accepted a broad conception of the right to counsel: the purpose of s. 10(b) is to advise the detainee how to deal with police questions. Since the detainee is arguably in the power of the police, the purpose of s. 10(b) is to restore a power-balance between the detainee and the police in the coercive atmosphere of the police investigation. In other words, s. 10(b) seeks to protect not to inform. The right against self-incrimination, an interest at the heart of s. 10(b), works together with the right to silence and the presumption of innocence to ensure that suspects are never obligated to participate in the building of the case against them. In the context of a custodial interrogation, s. 10(b) demands the right to effective assistance of counsel. At para. 177:
In our view, detainees who demand access to counsel before being further subjected to relentless interrogation against their will…are constitutionally entitled ‘to speak to [their] lawyer NOW’ (para. 111) — not TOMORROW, after the police, who hold all the cards, have won what Binnie J. aptly describes as a prolonged ‘endurance contest’ (para 89).
Applying this reasoning to the facts, the dissent held that the interview, the exchange with the undercover officer, and the re-enactment violated s. 10(b). Proceeding to s. 24(2) Charter analysis to determine whether the evidence was admissible, they held that the evidence should be excluded. The violation was significant as a person’s freedom was on the line and the breach struck at the core of fundamental rights in the criminal justice system: the right to silence and the protection against self-incrimination.
The Lone Dissent of Justice Binnie: Let us Make a Compromise
“You have reached counsel. Keep your mouth shut. Press one to repeat this message” (para 86). These words of the Ontario Criminal Lawyer’s Association as cited by Binnie J. in his decision concisely summarize his thoughts of the effect of the majority’s disposition. While he blatantly disagreed with the majority opinion, his reasoning also did not fall in line with that of his fellow dissenters. His approach attempted to strike a balance between the two analyses. Again, the legal analysis depended on the characterization of the purpose of s. 10(b). Binnie J. characterized the purpose of the s. 10(b) right in the context of a custodial interrogation as the satisfaction of a need for meaningful legal assistance rather than delay or distraction. It so follows then that s. 10(b) is engaged by the evolving circumstances of the interrogation.
The detainee is entitled to a further opportunity or opportunities to receive advice from counsel during a custodial interview where the detainee’s request falls within the purpose of the s. 10(b) right…and such request is reasonably justified by the objective circumstances, which were or ought to have been apparent to the police during the interrogation… (para 80).
Objective circumstances that give rise to justification of additional consultations will consider the following factors (not a closed list): the extent of prior contact with counsel; the length of the interview at the time of the request; the extent of other information (true or false) provided by the police to the detainee about the cause during the interrogation, which may reasonably suggest to the detainee that the advice in the initial consultation may have been overtaken by events; the existence of exigent or urgent circumstances that militate against any delay in the interrogation; whether an issue of a legal nature has arisen in the course of the interrogation; and the mental and physical condition of the detainee to the extent this is or ought to be apparent to the interrogator.
This analysis presents an intermediate position between the two other opinions. In Binnie J.’s view, while the majority decision “tightens the noose around s. 10(b)…” (para 84) and conflates the right to counsel with the right to remain silent, the other dissenting opinion gives a trump card to the detainee, granting a power to unilaterally end a custodial interrogation by demanding counsel. It should be noted also that he did concur with the majority by declining to adopt the submission that s. 10(b) requires the presence, upon request, of defence counsel during a custodial interrogation.
On application of this analysis to the facts, Binnie J. held that Sinclair’s request to speak again to counsel was reasonable, and the police refusal of that further consultation was a breach of s. 10(b). “It cannot reasonably be said…that the 360 seconds of legal advice [Sinclair] received in two initial phone calls before the police began their work was enough to exhaust his s. 10(b) guarantee” (para 83).