Justification for retriggering a detainee

R v Sinclair began as a trial for second degree murder, and was eventually brought to the Supreme Court of Canada (SCC) to resolve an issue relating to the scope and purpose of s. 10(b) of the Charter. The main issue was whether or not Mr. Sinclair was entitled to have additional consultation with his lawyer when confronted with new evidence. Ultimately, the court decided that he was not. The decision not only set new boundaries for s. 10(b), but carried significant ramifications for the admissibility of confessions and the right to silence.

This case comment will argue that Sinclair has created a dangerous situation for innocent detainees because of its narrow interpretation of the right to counsel and its affirmation of the problematic confessions rule from R v Oickle. 1 First, it will examine evidence that shows the power given to police by the Oickle confessions rule may have an adverse affect on the prevention of false confessions, and even offends the presumption of innocence. Then, this case comment disputes the majority's assertion in Sinclair that the threat of false confessions can be mitigated by the right to silence.

Finally, it will demonstrate the strength of the causal link between false confessions and wrongful convictions to illustrate the severity of Sinclair's consequences. B. CASE SUMMARY Key Facts The appellant in this case, Trent Terrence Sinclair, was arrested on December 14, 2002, for the second degree murder of Gary Grice. Upon arrest, Mr. Sinclair was advised of his right to retain and consult counsel, and subsequently spoke privately with a lawyer, Victor S. Janicki, for three minutes.

During this call, Mr. Janicki warned Mr. Sinclair that police may lie to him and/or use devices to obtain information, and advised him not to discuss anything important with the authorities. Mr. Sinclair had one more private phone call with Mr. Janicki, also lasting three minutes, before he was subjected to a five hour interrogation by police. 2 During this interrogation, police denied between four to six independent requests by Mr. Sinclair to consult with his lawyer again. 3 Eventually, Mr. Sinclair implicated himself in the murder and was subsequently put in a cell with an undercover officer.

There, he made additional incriminating statements to the undercover officer and later volunteered to participate in a re-enactment of the crime. 4 Procedural History At trial, counsel for Mr. Sinclair argued that the police refusal to allow additional consultations with his lawyer was a breach of s. 10(b) of the Canadian Charter of Rights and Freedoms. These confessions would then be rendered involuntary and would be subsequently excluded as evidence under s. 24(2) of the Charter. Justice Powers rejected this argument on the grounds that Mr. Sinclair's knowledge of his right to silence was sufficient to fulfill his right to counsel.

5 At the Court of Appeal for British Columbia, Justice Frankel affirmed the trial judgement, stating that police have no duty to refrain from questioning when an accused requests to speak with counsel. 6 Mr. Sinclair then appealed his conviction to the SCC. Supreme Court of Canada Decision Mr. Sinclair's appeal was dismissed in a markedly divided judgement from the SCC. Chief Justice McLachlin and Justice Charron, ruling for the majority, concluded that s. 10(b) of the Charter is predominantly concerned with an accused's right to silence, derived from the relevant jurisprudence on s. 7.

In their view, this right to silence is sufficient when an accused is exposed to real or fake evidence by the police. 7 They held that the right to consult with counsel is only the right to a single consultation. 8 However, they also acknowledged three situations where a change in circumstances makes additional consultation with counsel necessary. These three situations are: (a) when the detainee is subjected to new procedures (such as a lineup or polygraph), (b) when the detainee experiences a change in jeopardy, and (c) when interrogators have a reason to believe the detainee did not understand the initial advice of counsel.

It was held that Mr. Sinclair does not fall into any of them and therefore s. 10(b) was not violated in this case. They justified their narrow interpretation of s. 10(b) with reference to the voluntariness requirement that is embedded in the confessions rule. 9 Justice Binnie (dissenting) asserted that in this case, Mr. Sinclair's requests to receive advice from his lawyer were within s. 10(b) of the Charter because his initial advice could not have remained meaningful after police disclosed new evidence to him. Justice Binnie concluded that while s.

10(b) does not require the presence of counsel during custodial interrogation, it should give detainees the relevant legal information that a lawyer would possess. 10 His dissent called into question the notion that s. 10(b) only exists to preserve a detainee's right to silence. Instead, he asserted that the right to counsel only has value if it is customized for the circumstances. This is because an innocent accused often has an interest in co-operating (at least to a certain extent) with police, and a defence lawyer cannot advise an innocent detainee how to exonerate themselves without contextual information.

Justice Binnie characterized the majority's decision as the third "trump card" to police given by the SCC. The first "trump card" was the confessions rule from Oickle, where the court held that police conduct had to be egregious in order for a statement to be deemed involuntary. The second was R v Singh, which allowed police to engage in a prolonged interrogation, even if the detainee makes repeated requests to return to his cell. Justice Binnie warned that the cumulative effect of these three cases is an increased risk of false confessions and wrongful convictions.

Justices LeBel and Fish (dissenting) disagreed with Justice Binnie's reasoning, concluding that "the right to counsel is inextricably bound up with, although not subsumed by, the right to silence. "12 Their view was that Mr. Sinclair's s. 10(b) right was violated by his interrogators' refusal to allow him additional consultation with his lawyer irrespective of the circumstances. Accordingly, a mere request to speak with counsel would be a justification for retriggering a detainee's s. 10(b) right.