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Canada high court rules no right to counsel during interrogation

By Daniel Makosky

[JURIST] The Supreme Court of Canada [official website] ruled [judgment text] 5-4 Friday that Canadians do not have the right to have counsel present during custodial interrogations. The court held that § 10(b) of the Charter of Rights and Freedoms [text], which states that those under arrest have the right "to retain and instruct counsel without delay and to be informed of that right," is typically satisfied once the suspect is advised of the right and, if invoked, permitted "reasonable opportunity to consult counsel." The court went on to to say, however, that the charter does not extend so far as to necessitate counsel's presence for the duration of the interview. Writing for the majority, Chief Justice Beverley McLachlin and Justice Louise Charron [official profiles] declined to adopt an interpretation akin to the US Supreme Court ruling in Miranda v. Arizona [text], which affords suspects the right to effectively discontinue an interrogation by requesting counsel at any time, stating:

While the police must be respectful of an individual's Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say would not strike the proper balance between the public interest in the investigation of crimes and the suspect's interest in being left alone.

The court found, however, that suspects may again invoke their § 10(b) right in the event that the circumstances of the investigation warrant renewed legal consultation. Such circumstances may include the introduction of new evidence, filing of additional charges or belief that the previously received advice is flawed.

The case, Trent Terrence Sinclair v. Her Majesty the Queen [case materials], came to the court on appeal from the Court of Appeal for British Columbia [official website], which had ruled similarly. The case arose from Sinclair's prosecution for a November 2002 murder, for which he was arrested the following month. Following his arrest and during the interview, Sinclair was advised of his right to counsel and spoke with a lawyer twice by phone before indicating that he did not wish to continue speaking with police and again requesting his lawyer. Sinclair was advised that he may remain silent, but that he could not insist on his lawyer's presence. He later made inculpatory statements, agreed to participate in a reenactment of the crime and was convicted of manslaughter. In 2005, the Supreme Court of Canada ruled [JURIST report] that officers do not have to inform individuals of their right to counsel at DUI checkpoints, a policy also upheld under US law.

Full post as published by JURIST - The Paper Chase on October 09, 2010 (boomark / email).