Sep 11, 2020

Key Takeaways:

Section 10(b) of the Charter of Rights and Freedoms, the right to counsel, does not require the presence of defence counsel throughout a police interrogation. In most cases, an initial warning that the detainee can consult with a lawyer, coupled with a reasonable opportunity to do so, satisfied their s. 10(b) rights.

However, the police must provide additional opportunities to receive legal advice where the ongoing investigation makes this necessary. A second consultation with a lawyer will be required where circumstances change as a result of:

  • New procedures involving the detainee, such as a line up or lie detector test;
  • A change in the jeopardy (type of offence) facing the detainee; or
  • A reason to believe that the previous consultation was deficient.
  • These categories are not closed and are meant to enforce the purpose of s. 10(b), which is to provide legal advice relevant to the detainees right to choose whether or not to cooperate with the police investigation.

    Background Facts

    The appellant, Mr. Sinclair, was charged with second degree murder in November 2002. Ultimately, he was convicted by a jury of manslaughter. When arrested, Mr. S was advised that he was being arrested for murder and that he had the right to retain and instruct counsel without delay. He was told that he could have any lawyer he wanted and if he couldn’t afford one a Legal Aid lawyer would be made available for free. When asked if he wanted to call a lawyer, Mr. S responded “Not right this second.”

    After being booked at the RCMP detachment, Mr. S was asked again if he wanted to exercise his right to counsel. He told the officer that he wanted to speak to a lawyer named Mr. Janicki, who he had retained on a previous charge. After consulting twice with Mr. Janicki, Mr. S was interviewed by an officer for five hours. Multiple times Mr. S expressed discomfort with being interviewed without his lawyer, and each time the officer reiterated that he had the right to choose whether or not to talk.

    Altogether, Mr. S alternately said he wanted to speak with his lawyer and his intention to remain silent about the killing four or five times. Each time, the officer emphasized it was his decision whether to cooperate. Later, the police placed Mr. S with an undercover officer in his cell, who obtained more incriminating statements. Finally, Mr. S accompanied the police to where the killing occurred and participated in a re-enactment.

    At trial, Mr. S was convicted of manslaughter. He challenged the admissibility of his incriminating statements to the police, arguing that his right to counsel had been violated. The judge denied the application and allowed the statements into evidence. The Court of Appeal endorsed the trial judge.

    On appeal to the Supreme Court, Mr. S argues that s. 10(b) of the Charter imposes a duty on the police to stop questioning where the detainee has expressed a desire to speak with counsel again. He further argued that s. 10(b) requires the police to respect a detainee’s request to have counsel present during an interrogation.

    Verdict: Appeal dismissed. The section 10(b) Charter application was denied and the manslaughter conviction was allowed to stand.

    Section 10(b) – Right to Counsel

    Section 10(b) of the Charter of Rights and Freedoms states:

    “Everyone has the right on arrest or detention: to retain and instruct counsel without delay and to be informed of that right”

    The purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to their legal situation. The court’s recent decisions on this section emphasize that this right to counsel must be read alongside the right to silence found under s. 7.

    Section 10(b) has two components: (1) it requires that the detainee be advised of their right to counsel, and (2) it requires that the detainee be given an opportunity to exercise their right to counsel. The duty of the police to hold off on questioning until this consultation has occurred is implied by the second component.

    The detainee can waive their right to counsel and voluntarily cooperate with the police investigation. A valid waiver of the right to counsel still respects the purpose of s. 10(b).

    Section 24(2) of the Charter

    Though not discussed extensively in this case, Section 24(2) provides the appropriate remedy if a section 10(b) violation had been found. It allows a judge to exclude evidence obtained as the result of a Charter breach if admitting that evidence would “bring the administration of justice into disrepute.”

    Analysis

    There were three decisions written in this case. One majority (Chief Justice McLachlin, Justice Charron and three others) and two dissents. One dissent was written by Justice Binnie, writing alone, and a second dissent was delivered by Justice Lebel, Justice Fish and endorsed by Justice Abella.

    Majority Decision (CJ McLachlin and Charron)

    The Chief Justice and Justice Charron, writing for a majority of five supreme court justices, dismissed the appeal.

    Analyzing the literal text and purpose of section 10(b), the majority judges determined that there is no requirement for a lawyer to be present throughout a police interview. As for the right to re-consult counsel after an initial consultation, they determine that there is a limited right to do so under 10(b), but only in certain changes of circumstances.

    These circumstances include the following.

  • There is a new procedure involving the detainee, such as participation in a line-up or submitting to a polygraph. These generally would not be expected during the initial consultation with a lawyer, and require additional advice.
  • There is a change in jeopardy facing the detainee. A detainee is told upon detention the reasons for their detention. This is constitutionally required (see section 10(a) of the Charter). The initial consultation follows. If the investigation takes a new and more serious turn (for example, if the victim of an assault dies), this initial advice may no longer be adequate.
  • There is a reason to question the Detainee’s understanding of their section 10(b) right. A detainee can waive their right to counsel, but if the police have reason to believe that they did not fully understand this right, then there is a duty on the police to give them a further opportunity to talk to a lawyer.
  • These categories of circumstances are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to provide the detainee with advice in the new or changing situation.

    The majority judges explained that to expand the scope of s. 10(b) beyond this would interfere with the police's ability to conduct their investigation. They have the right to gather evidence from all sources, including the suspect of a crime. To give the suspect unfettered access to counsel, they say, would interfere with the police's ability to conduct an interrogation. There must be a balance between the public's interest in investigating crimes and the detainee's right to counsel.

    They applied their reasoning to the current facts. The main issue is whether Mr. S should have been given a second opportunity to consult with a lawyer. The court determined that no, Mr. S did no fall into any of the categories where a right to re-consultation has been recognized as necessary under s. 10(b). There was therefore no violation. The appeal was dismissed.

    Dissent 1 (Binnie J)

    Justice Binnie strongly disagreed with the majority and proposes a different interpretation of the right to counsel. He felt that their interpretation of the 10(b) right in this case was far too narrow, and that the s. 10(b) right to counsel should be designed to ensure that persons arrested or detained are treated fairly in the criminal process.

    Justice Binnie proposed that s. 10(b) may be engaged by the evolving circumstances of an interrogation. The disagreement with the majority relates to the conditions that are necessary for a defence lawyer to provide meaningful assistance to a client in trouble with the law. The detainee should be entitled to, in his view, receive advice from counsel during an interview where the detainee’s request is to satisfy a need for legal assistance rather than simple delay or distraction, and such a request is reasonably justified by the circumstances. “Reasonably justified” is determined objectively.

    Justice Binnie declined to accept that s. 10(b) requires the presence of defence counsel in the interrogation room with them. However, the majority’s categories of circumstances was still far too narrow, and “undershoots” the right of s. 10(b). Preliminary advice is a good start, but it does not provide adequate advice for detainees as an investigation progresses and evolves.

    He instead proposed an intermediate position that would allow detainees reasonable access to legal advice from time to time in the course of a police interrogation, but without defence counsel’s actual presence in the room. What circumstances reasonably warrant additional consultation depends on context. The police should not be required to shut down their interrogation simply because the detainee expressed a desire o consult counsel again.

    Factors that may justify additional consultation include, but are not limited to:

  • The extent of prior contact with counsel.
  • The length of the interview at the time of the request.
  • The extent of other information provided by the police to the detainee about the case, which may suggest that the initial advice may have been overtaken by events.
  • The existence of circumstances that make any delay in the interrogation difficult or impossible.
  • Whether a legal issue arose in the course of the interrogation concerning the evidence.
  • The mental and physical condition of the detainee.
  • Justice Binnie applied his interpretation to the current case. He found that the breach of s. 10(b) occurred when after several hours or so of suggestions and argument, the police interrogator confronted Mr. S with what he claimed was “absolutely overwhelming” evidence linking him to the crime and he appellant repeated his desire to consult with his counsel before going further. Reasonably, Mr. S must have wondered whether the initial six minutes of legal consultation he had up to this point was still enough.

    The police’s refusal to grant him access to counsel at this point was, in Justice Binnie's view, a breach of 10(b). The subsequent confession to the undercover officer and his participation in the re-enactment were also invalid because of the breach.

    Binnie would therefore have excluded the evidence under s. 24(2) of the Charter, allowed the appeal, and ordered a new trial.

    Dissent 2 (LeBel and Fish)

    Of the three judgements the one written by Justices LeBel and Fish went the furthest in expanding the right to counsel under s. 10(b). They too critiqued the majority, stating that their interpretation of section 10(b) was far too narrow, and undermines the protection against self-incrimination and presumption of innocence. They also rejected Justice Binnie’s “intermediate approach,” stating that that fresh access to counsel should not hinge on the police interrogator’s judgement of whether circumstances had changed enough to make new advice necessary. The right to counsel should not focus on the objective observations and the conclusions of the police, they emphasize, because of police's total control over the detainee.

    The three dissenting judges instead advocated for an expansive interpretation of 10(b), with an ongoing right to the assistance of counsel. This right to counsel should not be “spent” on an initial warning and consultation. The opportunity to consult with counsel should remain active throughout the interrogation. To not allow this would subject detainees to persistent and sustained interrogation without legal assistance, with the express purpose of obtaining a confession. This places a duty on the police to cease the interrogation and allow the detainee to access counsel whenever they assert that right.

    The dissenting judges applied their interpretation to the facts. Mr. S’s multiple requests for counsel were coupled with firm assertions of his right to silence. The police interrogator at one point asserted that to continue to exercise this right would be a “mistake.” The police’s failure to suspend the interrogation and allow Mr. S to consult with a lawyer, in the face of his numerous requests, was a breach of his right to counsel. As a result of this breach, any statements made after that point in the interrogation and to the undercover officer should be inadmissible.

    The Justices Lebel and Fish would have excluded the statements under s. 24(2), allowed the appeal, and ordered a new trial.