Sinclair and the Scope of the Right to Counsel: Are There Second Chances in Interrogations?

The Supreme Court of Canada (“SCC”) has granted leave to appeal in the matter of Trent Terrence Sinclair v Her Majesty the Queen. Given its relatively recent, high-profile decision in R v Singh, [2007] 3 SCR 405 [Singh] on a similar issue, it will be quite surprising if the SCC chooses to deviate from its holding in that case. Unless Mr. Sinclair drastically alters his arguments from those submitted to the British Columbia Court of Appeal (“BCCA”), it appears as though his next appeal will not succeed.

The Facts

The main issue in Mr. Sinclair’s previous appeal (R v Sinclair, 2008 BCCA 127) was whether s. 10(b) of the Canadian Charter of Rights and Freedoms imposes a duty on the police to cease questioning a detainee who has exercised his or her right to counsel, when that person has indicated a desire to speak to counsel again. The facts prompting this argument were as follows. After being arrested for the murder of Garry Grice, Mr. Sinclair was advised of his right to retain and instruct counsel, that he could call any lawyer of his choosing, and that if he could not afford one, a Legal Aid lawyer was available without charge. Though Mr. Sinclair turned down the arresting officer’s offer to call a lawyer at that time, he indicated his wish to call one when he reached the detachment. Mr. Sinclair was given two opportunities to speak to his lawyer on the phone, and following these conversations, he was interviewed by Sergeant Kerry Skrine for several hours.

The interview commenced with Sergeant Skrine confirming that Mr. Sinclair had been advised of, and had exercised, his right to counsel, and that the interview was being recorded and could be used in court. When the sergeant began questioning Mr. Sinclair on his background, Mr. Sinclair stated that he wanted to have his lawyer present; the sergeant responded that while it was up to Mr. Sinclair to decide whether to answer his questions, he was not entitled to have his lawyer present during the interview. Over the next four and a half hours in the interview room, Sergeant Skrine systematically revealed several pieces of evidence gathered by the police. He said that Mr. Grice’s blood had been found on the floor of Mr. Sinclair’s motel room, but in response to this revelation, Mr. Sinclair still insisted that he had nothing to say. Sergeant Skrine then told Mr. Sinclair that two witnesses had seen Mr. Sinclair trying to clean up those bloodstains, and played Mr. Sinclair a portion from one witness’s videotaped statement. But when Mr. Sinclair was asked for an explanation of what had happened that night, he again asserted that he wanted to speak to his lawyer.

At this point, Sergeant Skrine left the interview room. When he returned, he told Mr. Sinclair that the police had found Mr. Grice’s body and the bedding from the motel room, but added the lie that Mr. Sinclair’s DNA was found on the bedding. At this point, Mr. Sinclair said, “you got me, I know it” and informed the sergeant about what had happened the night of Mr. Grice’s death. Mr. Sinclair was returned to his cell, where an undercover officer had been placed. The officer commented that because his interview had taken a long time, “it must be serious,” and Mr. Sinclair responded, “they’ve got me: the body, the sheets, the blood, the fibres on the carpet, witnesses. I’m going away for a long time but I feel relieved.” He gave a similar confession to the officer as he had given to Sergeant Skrine. Later, Mr. Sinclair accompanied the police to the scene of the crime and took part in a re-enactment, during which he again repeated what he had earlier confessed.

At trial, a voir dire was held to determine the admissibility of Mr. Sinclair’s various incriminating statements, and all three were admitted. In his consideration of the Sergeant Skrine interview, the trial judge held that once a person has been advised of, and exercised, their s. 10(b) rights, the police can continue to interview them. The police must not override or overbear the person’s right to choose during the interrogation, but they are not obliged to stop or to allow defence counsel to be present at this time. In finding the interview voluntary, the trial judge noted that Mr. Sinclair exercised his right to counsel and was aware that it was his choice to continue to speak to Sergeant Skrine. Mr. Sinclair’s statement to the undercover officer was also admissible because the officer was not a person in authority, and had not attempted to elicit information or engage Mr. Sinclair in discussions about the offence. Finally, the evidence of the re-enactment was admissible because Mr. Sinclair had voluntarily participated.

The “Broad Proposition”

In rejecting Mr. Sinclair’s two main submissions, the BCCA agreed with the trial judge. Firstly, Mr. Sinclair advanced the “broad proposition” that “[w]hen an arrested person, during an interrogation, requests a further consultation with his lawyer, the police must respect that request and suspend further questioning until the accused has reasonable opportunity to obtain further legal advice.” Mr. Sinclair argued that this proposition can be drawn from the case of R v Burlingham, [1995] 2 SCR 206 [Burlingham]. However, the appellate court disagreed with both the veracity of this proposition, and the notion that it could even be drawn from Burlingham case.

In assessing the proposition itself, the appellate court did not agree that the police have a duty to “hold off.” The thrust of the principle underlying the right to counsel is that arrested or detained persons are informed of their right to obtain timely legal advice, particularly respecting their right to remain silent; this need not encompass any “holding off” requirement. The scope of the right to counsel has been surveyed in several cases, most notably in R v Hebert, [1990] 2 SCR 151, wherein the SCC held that honouring a suspect’s right to counsel satisfies the requirement that the suspect make an informed choice about whether or not he will speak to the authorities. Similarly, in Singh, the SCC rejected the premise that s. 7 of the Charter obliges the police to refrain from questioning a detainee who has asserted his or her right to silence. The police can still use “legitimate means of persuasion” to change that person’s mind. These cases, among others, confirm that the police may use legitimate means to persuade a detainee to speak. They do not, however, disclose any policy reasons for providing that detainee the peremptory right to terminate an interview by stating, “I want to talk to my lawyer again.” The right to counsel does not extend that far.

After the BCCA surveyed the broadly relevant SCC cases, it also found that Mr. Sinclair’s proposition has been specifically rejected by several provincial appellate courts. The BCCA referred to several cases, but the Ontario Court of Appeal’s decision in R v Logan, [1988] 46 CCC (3d) 354 (ONCA) [Logan] contains a particularly apt excerpt. In reaching its conclusion that s. 10(b) does not require a detainee to be re-informed of the right to counsel, the court stated:

[t]he words ‘upon arrest or detention’ indicate a point in time, not a continuum. They do not deal with a continuing right to be reinstructed before every occasion on which the police obtain a statement from the accused … [i]t does not express a prerequisite to every subsequent elicitation of information (at 381).

According to the BCCA, Logan and similar cases across the appellate courts contain a constant theme: s. 10(b) does not require the police to “hold off” when a detainee who has exercised his or her right to counsel asks to speak with a lawyer again.

The BCCA drew its “holding off” analysis to a close by easily distinguishing the cases upon which Mr. Sinclair relied to formulate his broad proposition, in particular, that of Burlingham. The court noted that Burlingham did not simply deal with the interrogation of a detainee who has asked to speak with counsel again. Rather, it dealt with egregious police conduct, wherein the police made disparaging comments about Mr. Burlingham’s lawyer, made a time-limited plea offer, and pressured Mr. Burlingham into making a decision without consulting that lawyer. In the end, Mr. Burlingham was found to have not understood the full content of his right to counsel. The detainee’s confusion was the critical fact on which the SCC’s decision turned, and not, as Mr. Sinclair asserted, that the police must respect a request for further consultation with one’s lawyer. The BCCA concluded this section of its findings by stating that the other cases upon which Mr. Sinclair’s proposition relied also dealt with different issues. Ultimately, the proposition that the police must “hold off” their questioning until a detainee obtains further legal advice was resoundingly rejected.

“Special Circumstances”

In Mr. Sinclair’s alternative submission, he argued that his case contained special circumstances that required the police to “hold off” questioning him until he had a chance to speak with his lawyer again. These special circumstances were that he did not have a “meaningful discussion with his lawyer;” only after his five requests to speak to his lawyer were ignored did he make incriminating statements; his understanding of the case changed as the interview proceeded; and his request was not a “dilatory tactic.”

The appellate court quickly dispatched with every argument. With regard to whether his discussion with counsel was meaningful, the court noted that Mr. Sinclair bore the burden of proof on a balance of probabilities to show that his consultation was inadequate, and neither he nor his lawyer had testified on the voir dire. In any event, the trial judge had found that Mr. Sinclair was aware of his rights by examining the impugned statements, and the appellate court declined to vary the lower court’s finding in that regard. On the second issue, the court held that the number of times a detainee asks to speak to counsel is inconsequential in terms of whether or not the police have already complied with s. 10(b). The court reasoned, quite logically, that if the police have no duty under this section to refrain from further questioning when such a request is made, then such a duty cannot arise simply because the request is repeated.

Thirdly, there was no change in Mr. Sinclair’s jeopardy during the interview, as he was aware from the outset that he had been arrested for Mr. Grice’s murder. The court found that Mr. Sinclair’s growing awareness of the strength of the case against him did not give rise to a renewed right to obtain legal advice. For this renewed right to arise, case law requires a “fundamental change in the purposes of the investigation,” and this standard was not satisfied in Mr. Sinclair’s case. The court’s final finding on the “dilatory tactic” issue echoed its conclusion on the second argument; merely because Mr. Sinclair was not attempting to delay the proceedings did not impose a constitutional duty on the police when none otherwise existed. Again, if no such “holding off” duty existed, then Mr. Sinclair’s reason for requesting it was inconsequential to the sergeant’s Charter compliance. In this systematic fashion, Mr. Sinclair’s special circumstances were also rejected.

Conclusion

Mr. Sinclair’s submissions to the SCC are not available at this time. However, if they at all resemble the above arguments, I find it hard to believe that his next appeal will result in success. Though the Singh case dealt with the scope of s. 7, rather than that of the s. 10(b) right to counsel at issue here, the SCC would have to deviate significantly from its conclusion in Singh and its related s. 10(b) jurisprudence to find that Mr. Sinclair’s Charter right was infringed. I look forward to discovering if I have spoken too soon.