(1) A detainee does not have the right to have counsel present during a police interrogation. (2) A detainee does not generally have the right to have additional phone calls with counsel, unless there has been a change of circumstances.
Court membership
Reasons given
Majority
McLachlin C.J. and Charron J. (paras. 1-75), joined by Deschampes, Rothstein, and Cromwell JJ.
Dissent
Binnie J. (paras. 76-122)
Dissent
LeBel and Fish JJ. (paras. 123-227), joined by Abella J.
Specifically, the case addresses two issues regarding the police's implementation duty under the right to counsel: 1) does a detainee have the right to have a lawyer present during police questioning, and 2) does a detainee have the right to make multiple phone calls to their lawyer. A majority of the Court answered the first question in the negative, and answered the second question in the negative, subject to a change of circumstances.
Upon his arrest and being advised of the reason for his arrest, Sinclair was given his rights to counsel. Sinclair indicated that he wanted to speak to a specific lawyer. The police placed a call to that lawyer and allowed Sinclair to speak to the lawyer over the phone in a private room. Three minutes later, Sinclair indicated that he had completed his phone call. When asked by the police if he was satisfied with the phone call, Sinclair replied "Yeah, he's taking my case."
Three hours later, the police called the lawyer to see if he was coming to the police station to meet Sinclair. The lawyer replied that he was not, as he did not have a retainer yet. However, he asked to speak to Sinclair again, and the two spoke privately over the phone for another three minutes. Sinclair again told the police he was satisfied with the phone call.
Later that day, Sinclair was questioned by the police for five hours. Prior to the start of the questioning, Sinclair confirmed that he exercised his right to counsel, and the police warned Sinclair that he did not have to say anything and that interview would be recorded and could be used in court. At the outset of the questioning, Sinclair said he would not answer the police officer's questions until his lawyer was present and could advise him. The police officer confirmed with Sinclair that he had the right not to speak. The police officer also advised Sinclair that his understanding of the law in Canada was that he had the right to speak to a lawyer, but not to have a lawyer present during questioning. Sinclair accepted the officer's statement, and the interview continued.
As the interview progressed, Sinclair repeated that he wanted his lawyer present. The officer repeated that Sinclair had the right not to speak, and that Sinclair's right to counsel was exercised by his phone calls. Sinclair again accepted the officer's statements, and the interview continued.
During the interview, the police officer revealed details of the crime that implicated Sinclair. Some of those details were false. Sinclair responded by saying he had nothing to say and would not be talking, and that he wanted to talk to his lawyer about what the officer was saying. The officer replied by again repeating that it was Sinclair's choice whether he wanted to speak or not. This happened four or five times during the interview.
At one point in the interview, Sinclair indicated that he was uncertain what he should say, and that he would like some time to speak with his lawyer.
The police officer's questioning continued. Sinclair eventually admitted to stabbing the victim multiple times and disposing of the body and evidence.
After the interview, Sinclair was placed in a cell with an undercover officer. Sinclair told the undercover officer: "They've got me, the body, the sheets, the blood, the fibres on the carpet, the witnesses. I'm going away for a long time but I feel relieved." Sinclair explained he would not be looking over his shoulder for the police.
Sinclair later went with the police to the scene of the crime and re-enacted what happened.
Trial
The trial took place at the Supreme Court of British Columbia. The trial judge found that the three statements (interview, cell, and re-enactment) were voluntary, and that Sinclair's right to counsel was satisfied when he spoke with his lawyer over the phone. The statements were admitted into evidence, and Sinclair was found guilty of manslaughter.
Sinclair was later granted leave to appeal to the Supreme Court of Canada.
Reasons of the court
The majority decision was co-written McLachlin C.J. and Charron J. Two separate dissenting decisions were also released: one was written by Binnie J. and the other was co-written by LeBel and Fish JJ.
Purpose of right to counsel
The majority found that the purpose of the right to speak with counsel is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights." In the context of a police interrogation, the purpose of the right is to support a detainee's right whether or not to cooperate with the police by giving the detainee access to legal advice.
In his dissenting decision, Justice Binnie found that the purpose of the right to counsel is to help a detainee understand his or her rights as well as how to exercise those rights in dealing with the authorities. Binnie pointed out that if the purpose of the right to counsel was just to echo what the police had already said, regardless of what may emerge during the course of the interrogation, then the role of counsel could be replaced with the following recorded message: You have reached counsel; keep your mouth shut; press one to repeat this message.
Justice Binnie found that between the majority's interpretation in this case, and the Court's decision in prior cases regarding police interrogations (i.e. R v Singh, 2007 SCC 48), the police have more power over a detainee than the Charter intended.
In their dissenting decision, Justices LeBel and Fish found that the purpose of the right to counsel was broader, and that it includes advising a detainee why and how their rights should be effectively exercised.
Right to have counsel present during interrogation
Given the purpose of the right to counsel, the majority found that the purpose can be exercised when a detainee is given access to speak to counsel when circumstances change. There is no need for counsel to be present during an interrogation for the right to counsel to be properly exercised (although nothing prevents counsel from being present if both sides agree).
Justice Binnie agreed with the majority that there was no right to have counsel present during a police interview.
Justices LeBel and Fish did not explicitly deal with this issue.
Right to reconsult with counsel
The majority found that given the purpose of the right to counsel, a detainee has the right to reconsult with counsel if there has been a change of circumstances such that the initial legal advice would no longer be adequate. The majority provided the following, non-exhaustive list of possible change of circumstances that would require further consultation with counsel:
New, non-routine procedures, that the advising lawyer would not have expected at the time of the original consultation (i.e. a polygraph, a photo lineup, etc.).
Change in jeopardy (i.e. new charges).
Reason to believe the detainee did not understand his right to counsel.
The majority went on to find that the change in circumstances must be objectively observable, and cannot be claimed by a detainee after the fact. The majority also found that if the right to reconsult was triggered every time a detainee person requests to reconsult his lawyer, the police would be giving up control of the interrogation to the detainee.
In his dissenting decision, Binnie J. endorsed an intermediate position where a detainee makes a request to reconsult counsel when it is reasonable in the circumstances. Although Binnie J. did not define what is reasonable, he provided a non-exhaustive list of factors.
In their dissenting decision, LeBel and Fish JJ. found that a detainee had the right to reconsult with counsel at his or her request, and that police can continue the interrogation after the right has been properly exercised. The dissent also disagreed with Binnie J.'s decision, as the power to decide when a detainee should be allowed to speak to their counsel should not be left in the hands of the interrogator.
Application to the facts
The majority found that there had been no change in Sinclair's circumstances that would have justified the need for him to receive further advice from counsel. It appeared that Sinclair fully understood his right that it was his choice whether to talk or remain silent. Therefore, the majority dismissed the appeal.
Justice Binnie found that Sinclair's requests to speak to his lawyer again did not become reasonable until he had been interrogated for a number of hours and had been advised that there was "absolutely overwhelming" evidence against him. As a result, Sinclair's rights were breached. The admission to the undercover officer and the re-enactment were also tainted by the breach. Since there is a presumption against admission of unconstitutionally obtained statements, Binnie J. would have excluded the statements from evidence, and would have allowed the appeal and ordered a new trial.
Justices LeBel and Fish found that by not allowing Sinclair to speak to his lawyer again after multiple requests, his rights were breached, and the admission to the undercover officer and the re-enactment were tainted. Applying the test from R v Grant, they would have excluded the statements from evidence, allow the appeal, and order a new trial...
In the United States, the Miranda warning is a type of notification customarily given by police to criminal suspects in police custody advising them of their right to silence and, in effect, protection from self-incrimination; that is, their right to refuse to answer questions or provide information to law enforcement or other officials. Named for the U.S. Supreme Court's 1966 decision Miranda v. Arizona, these rights are often referred to as Miranda rights. The purpose of such notification is to preserve the admissibility of their statements made during custodial interrogation in later criminal proceedings. The idea came from law professor Yale Kamisar, who subsequently was dubbed "the father of Miranda."
Miranda v. Arizona, 384 U.S. 436 (1966), was a landmark decision of the U.S. Supreme Court in which the Court ruled that law enforcement in the United States must warn a person of their constitutional rights before interrogating them, or else the person's statements cannot be used as evidence at their trial. Specifically, the Court held that under the Fifth Amendment to the U.S. Constitution, the government cannot use a person's statements made in response to an interrogation while in police custody as evidence at the person's criminal trial unless they can show that the person was informed of the right to consult with a lawyer before and during questioning, and of the right against self-incrimination before police questioning, and that the defendant not only understood these rights but also voluntarily waived them before answering questions.
The right to silence is a legal principle which guarantees any individual the right to refuse to answer questions from law enforcement officers or court officials. It is a legal right recognized, explicitly or by convention, in many of the world's legal systems.
In criminal law, self-incrimination is the act of making a statement that exposes oneself to an accusation of criminal liability or prosecution. Self-incrimination can occur either directly or indirectly: directly, by means of interrogation where information of a self-incriminatory nature is disclosed; or indirectly, when information of a self-incriminatory nature is disclosed voluntarily without pressure from another person.
William Brydges was a Canadian man whose arrest for murder resulted in the leading Supreme Court of Canada case R v Brydges on the right of a detainee to access duty counsel. His case was a Canadian precedent, and created significant controversy after the Supreme Court of Canada upheld his acquittal. He was found to have been denied access to an attorney because he was not informed of legal services available to him when he told police he could not afford a lawyer. This case had nationwide ramifications, requiring all police officers to advise a person under arrest of the availability of legal services even if they couldn't afford them.
R v Mann is a 2004 decision of the Supreme Court of Canada.
William Ian Corneil Binnie is a former puisne justice of the Supreme Court of Canada, serving from January 8, 1998 to October 27, 2011. Of the justices appointed to the Supreme Court in recent years, he is one of the few appointed directly from private practice. On his retirement from the Court, he was described by The Globe and Mail as "arguably the country's premier judge", by La Presse as "probably the most influential judge in Canada of the last decade" and by the Toronto Star as “one of the strongest hands on the court.”
R v Manninen [1987] 1 S.C.R. 1233 is a leading Supreme Court of Canada decision on an accused Charter right to retain and instruct a lawyer as well as the right to silence.
R v Brydges, [1990] 1 S.C.R. 190 is a leading Supreme Court of Canada decision on the right to retain and instruct counsel under section 10(b) of the Canadian Charter of Rights and Freedoms. The Court held that the right imposed a duty upon the police to provide information and access to a legal aid lawyer if needed. From this case came the term "Brydges Counsel" to refer to legal aid lawyers that assist recently arrested individuals.
R v Bartle, [1994] 3 SCR 173 is a leading Supreme Court of Canada decision on the right to retain and instruct counsel under section 10(b) of the Canadian Charter of Rights and Freedoms ("Charter"). The Court held that a police officer is required to hold off on his or her investigation upon arresting an individual until the detainee has been informed of his or her rights and given sufficient information and access to contact a private lawyer or duty counsel. The case applied the earlier Supreme Court of Canada decision R v Brydges. The judgment was released with three other decisions: R v Pozniak, R v Harper, R v Matheson and R v Prosper.
McNeil v. Wisconsin, 501 U.S. 171 (1991), held that the right to counsel secured by the Sixth Amendment and the right to counsel protected by Miranda v. Arizona are separate and distinct, such that invoking one does not implicitly invoke the other.
Oregon v. Bradshaw, 462 U.S. 1039 (1983), applied the rule first announced in Edwards v. Arizona (1981) and clarified the manner in which a suspect may waive his right under Miranda v. Arizona (1966) to have counsel present during interrogation by the police.
Garrity v. New Jersey, 385 U.S. 493 (1967), was a case in which the Supreme Court of the United States held that law enforcement officers and other public employees have the right to be free from compulsory self-incrimination. It gave birth to the Garrity warning, which is administered by investigators to suspects in internal and administrative investigations in a similar manner as the Miranda warning is administered to suspects in criminal investigations.
Michigan v. Jackson, 475 U.S. 625 (1986), was a case decided by the United States Supreme Court regarding the Sixth Amendment's right to counsel in a police interrogation. In a decision written by Justice Stevens, the Court held that once an accused individual has claimed a right to counsel at a plea hearing or other court proceeding, a waiver of that right during later police questioning would be invalid unless the accused individual initiated the communication.
R v Grant, 2009 SCC 32 is a leading decision of the Supreme Court of Canada on section 9, section 10 and section 24(2) of the Canadian Charter of Rights and Freedoms ("Charter"). The Court created a number of factors to consider when determining whether a person had been detained for the purpose of sections 9 and 10 of the Charter. The Court also created a new test for determining whether evidence obtained by a Charter breach should be excluded under section 24(2) of the Charter, replacing the Collins test.
R v Suberu2009 SCC 33 is a leading decision of the Supreme Court of Canada on section 9 and section 10 of the Canadian Charter of Rights and Freedoms. The Court applied the new test for detention created in the companion case of R v Grant and ruled on the timing of when an individual is required to be informed of his or her rights to counsel after being arrested or detained.
Berghuis v. Thompkins, 560 U.S. 370 (2010), is a landmark decision by the Supreme Court of the United States in which the Court considered the position of a suspect who understands their right to remain silent under Miranda v. Arizona and is aware that they have the right to remain silent, but does not explicitly invoke or waive the right.
Brewer v. Williams, 430 U.S. 387 (1977), is a decision by the United States Supreme Court that clarifies what constitutes "waiver" of the right to counsel for the purposes of the Sixth Amendment. Under Miranda v. Arizona, evidence obtained by police during interrogation of a suspect before he has been read his Miranda rights is inadmissible. Here, however, the defendant had been indicted in court and had asserted his desire to have counsel, thus his Sixth Amendment right to counsel had attached. At issue was whether a voluntary admission of incriminating facts in response to police statements made while the defendant was in custody and outside the presence of his lawyer constituted a waiver of this right to counsel.
Wood v Schaeffer is a significant ruling of the Supreme Court of Canada concerning procedural requirements involving incidents arising from police misconduct.
Crooker v. California, 357 U.S. 433 (1958), was a decision by the Supreme Court of the United States that limited criminal suspects' constitutional right to counsel before trial, refusing to overturn a subsequent conviction without a showing that the refusal of counsel had a coercive or prejudicial effect. This holding was later overturned by Escobedo v. Illinois and Miranda v. Arizona.
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