A New Iron Triangle (Oickle, Singh and Sinclair): Limiting Rights during Police Interrogation

Police interrogations involve psychological manipulation. The physical layout of an interrogation room is designed to maximize a suspect’s discomfort and sense of powerlessness from the moment he steps inside. Interrogators attempt to develop a rapport with the suspect, using casual conversation to create a non-threatening atmosphere. Eventually, the detective confronts the suspect with bits and pieces of incriminating evidence, conjectural or real, and creates a story about why the suspect committed the crime: Can you explain how your fingerprints were found at the crime scene? You killed her out of passion, right? The detective continues pretending to be the suspect’s ally, coercing him or her to lose resolve and cooperate with the police investigation: You have got to summon the courage up to look yourself in the mirror and decide what person you want to be. You have made decisions in a state that only you can tell me or make me understand.

The coercive atmosphere of police interrogations makes these interviews a very useful investigation technique for police. While the state has a valid interest in investigating crimes, this interest must be balanced against the rights of individuals in a free society. At the heart of our criminal justice system lies the presumption of innocence, the right against self-incrimination and the right to silence. Police interrogations are subject to limits, and a trilogy of recent Supreme Court of Canada (“SCC”) decisions has addressed these limits, more specifically the common law confessions rule, the right to silence and the right to counsel. Critics of the decisions hold that the result of the trilogy tips the balance disproportionately in favour towards the interests of the state and out of favour with the rights of individuals in a free society. This post will further explore this critique.

The first case of the interrogation trilogy is R v Oickle, [2000] 2 SCR 3 [Oickle]. The case deals with the police investigation of a series of fires. Following a polygraph test, Oickle confessed to arson in the course of a six hour police interrogation. The case establishes the scope of the common law rules related to voluntariness. Basically, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. A combination of oppressive conditions and inducements (ie. threats or promises that raise hope of advantage or fear of prejudice) can operate together to exclude confessions. While the legal principles behind the common law confessions rule are comprehensive and fair, it has been contended that the case, in practice, sets a high barrier to exclusion of a confession. A majority of the court in Oickle held that the confession was voluntary despite the fact that police minimized the moral significance of the crimes (they did not minimize the legal consequences), made offers of psychiatric help (the police only suggested the potential benefits of confession, and did not provide an inducement conditional upon receiving a confession), and suggested that his fiancée would have to undergo a polygraph test, but not if Oickle confessed.

The second case of the trilogy is R v Singh, [2007] 3 SCR 405 [Singh]. This case was formerly commented on by TheCourt.ca – please see here and here. The accused was arrested for second degree murder in respect of the shooting death of an innocent bystander who was killed by a stray bullet while standing just inside the doorway of the pub. During the course of his custodial interview, the accused asserted his right to silence eighteen times. While the accused never confessed to the crime, he made a number of inculpatory statements. The majority of the SCC deemed that the statements were voluntary and did not result from the police systematically breaking down his operating mind or undermining his right to silence guaranteed by s. 7 of the Charter. The majority held that detainees who have asserted their right to silence have no consequent right or power to prevent the police from relentlessly pursuing their custodial interrogation. In short, the right to silence only permits the accused to sit silently through a five hour interrogation in an unfamiliar and isolated interrogation room with a looming “get me out here” atmosphere.

The final case of the trilogy is R v Sinclair, [2010] 2 SCR 310 [Sinclair], which deals with the right to counsel. Again, this case was formerly commented on by TheCourt.ca – please see here. In Sinclair, the majority of the court held that right to counsel guaranteed by s. 10(b) of the Charter does not mandate the presence of defense counsel throughout a custodial interrogation. Additionally, the right is re-triggered only when an objectively reasonable 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. In effect, the right to counsel is reduced to a quick (most likely less than five minute) phone conversation with a lawyer. What type of meaningful advice can realistically be given in such a call? Keep your mouth shut. Do not listen to the police. Good luck with the endurance contest.

Read as a whole, the balancing act of interests in the context of a police interrogation is not so balanced. In the most recent decision, Sinclair, the majority of the court argued that the interpretation of s. 10(b) did not give carte blanche to the police (an argument contended by the dissent). It held that the interplay between the voluntary confessions rule, the right to silence, and the right to counsel as established by the interrogation trilogy, in fact, broadens the protection available to suspects, as opposed to constitutionalizing the expansion of police powers. Police must fulfill their obligations under s. 10(b), and any residual concerns regarding the detainee’s inability to consult counsel during a custodial interrogation can be meaningfully addressed by an assessment of the voluntariness of the statement. Moreover, repeated assertions of the right to remain silent may raise a strong argument that statements were not voluntary. While the legal argument appears sound, the translation of the law into practice does not afford the level of protection constitutional rights should grant. As the dissent in Sinclair aptly put at para. 184 the suggestion of the majority, “renders pathetically anaemic the entrenched constitutional rights to counsel and to silence.” In effect, the restraints on the right to counsel and the rights to silence imposed by the court in Sinclair and Singh results in detainees being unable to use their constitutional rights to prevent their participation in the investigation against them. The police armed with professional training in psychological manipulation and with the goal of extracting a confession have unfettered and continuing access to the detainee for a significant time period. Contrastingly, the accused is armed with three minutes of legal advice and their own personal resolve to refrain from saying a single word during five hours of police interrogation. If they do speak and make incriminating statements, their residual protection is the common law voluntariness of confessions, under which courts have found statements to be voluntary even when an accused has asserted the right to silence on eighteen separate occasions during a custodial interview.

Read as a whole, it appears that the balance has been tipped.

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