R. v. Sinclair (T.T.), (2010) 406 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 08, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 406 N.R. 1 (SCC);2010 SCC 35;77 CR (6th) 203;406 NR 1;496 WAC 36;AZ-50677841;324 DLR (4th) 385;EYB 2010-180262;JE 2010-1803;218 CRR (2d) 1;259 CCC (3d) 443;293 BCAC 36;[2010] BCWLD 7592;[2010] EXP 3245;[2010] 2 SCR 310;[2010] SCJ No 35 (QL);90 WCB (2d) 610;[2010] CarswellBC 2665

R. v. Sinclair (T.T.) (2010), 406 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.R. TBEd. OC.002

Trent Terrence Sinclair (appellant) v. Her Majesty The Queen (respondent) and Attorney General of Ontario, Director of Public Prosecutions of Canada, Criminal Lawyers' Association of Ontario, British Columbia Civil Liberties Association and Canadian Civil Liberties Association (intervenors)

(32537; 2010 SCC 35; 2010 CSC 35)

Indexed As: R. v. Sinclair (T.T.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

October 8, 2010.

Summary:

An accused convicted of manslaughter appealed his conviction on the basis that his s. 10(b) Charter right to counsel was denied where police continued to interview him after he repeatedly asked to speak with his lawyer again. The accused had already been properly cautioned and had spoken with this lawyer twice.

The British Columbia Court of Appeal, in a judgment reported (2008), 252 B.C.A.C. 288; 422 W.A.C. 288, dismissed the appeal. The police had no obligation to discontinue questioning an accused who had exercised his right to counsel. The accused appealed.

The Supreme Court of Canada, Binnie, LeBel, Fish and Abella, JJ., dissenting, dismissed the appeal. Section 10(b) did not entitle an accused to have a lawyer present during questioning. Once an accused was advised of his right to counsel and exercised those rights, there was no right to re-consult with counsel unless there existed changed circumstances making it necessary for the accused to receive further legal advice relevant to his right to choose whether to cooperate with the police investigation or not.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimination - [See second Civil Rights - Topic 4604 ].

Civil Rights - Topic 4601

Right to counsel - General (incl. nature and purpose of) - The Supreme Court of Canada stated that "the purpose of s. 10(b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. In the context of a custodial interrogation, chief among the rights that must be understood by the detainee is the right under s. 7 of the Charter to choose whether to cooperate with the police or not. ... These rights combine to ensure that a suspect is able to make a choice to speak to the police investigators that is both free and informed ... 'The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obligated to allow the suspect to make an informed choice about whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel.' ... The purpose of the right to 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' ... The emphasis, therefore, is on assuring that the detainee's decision to cooperate with the investigation or decline to do so is free and informed. Section 10(b) does not guarantee that the detainee's decision is wise; nor does it guard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legal advice relevant to that choice." - See paragraphs 24 to 26.

Civil Rights - Topic 4601

Right to counsel - General (incl. nature and purpose of) - The Supreme Court of Canada stated that "[the accused] argues that ... the purpose of s. 10(b) is to advise the detainee how to deal with police questions. The detainee, it is argued, is in the power of the police. The purpose of s. 10(b) is to restore a power-balance between the detainee and the police in the coercive atmosphere of the police investigation. On this view, the purpose of the right is not so much informational as protective. We cannot accept this view of the purpose of s. 10(b). ... this view of s. 10(b) goes against 25 years of jurisprudence defining s. 10(b) in terms of the right to consult counsel to obtain information and advice immediately upon detention, but not as providing ongoing legal assistance during the course of the interview that follows, regardless of the circumstances." - See paragraphs 30 to 31.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - The Supreme Court of Canada stated that "in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed." - Where an accused was presented with non-routine procedures like participation in a line-up or submitting to a polygraph, the accused should be permitted to re-consult counsel to give the accused sufficient information to make a meaningful choice about whether to cooperate in these new procedures - The court stated that "the failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct. This is consistent with the purpose of s. 10(b) to ensure that the detainee's decision to cooperate with the police or not is informed as well as free. ... the principles and case-law do not support the view that a request, without more, is sufficient to re-trigger the s. 10(b) right to counsel and to be advised thereof. What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation ... Police tactics short of such a change may result in the Crown being unable to prove beyond a reasonable doubt that a subsequent statement was voluntary, rendering it inadmissible. But it does not follow that the procedural rights granted by s. 10(b) have been breached." - See paragraphs 2, 43 to 65.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - An accused convicted of manslaughter appealed his conviction on the basis that his s. 10(b) Charter right to counsel was denied - The accused was advised of his right to counsel and spoke to counsel twice - After several hours of being interviewed, the accused repeatedly said that he did not want to talk further and wished to speak with his lawyer again - The police ignored the request, continued the investigation, and the accused eventually implicated himself in the death - The accused was placed in a cell with an undercover officer and made similar incriminating statements to him - The accused conceded that the statements made during the interview were voluntary, but argued that once he requested to speak with counsel again the police had an obligation to stop questioning him - The police explained that he had already exercised his right to counsel and re-advised him of his right to remain silent - The British Columbia Court of Appeal affirmed that the accused's right to counsel was not denied - There was no duty on police to cease questioning an accused who exercised his right to counsel - The accused was advised of his right to counsel, exercised that right and, although not entitled to speak with counsel again, he was repeatedly advised during the interview that he had the right to say nothing - The accused, having had the benefit of counsel's advice, made an informed choice to speak with police in response to their persistent questioning and their presentation of "overwhelming" evidence (both real and invented) of the accused's guilt - Once the accused exercised his right to counsel, the police were entitled to use legitimate means to persuade the accused to speak - The Supreme Court of Canada agreed that the accused's s. 10(b) right to counsel was not violated - There was no change in circumstances entitling the accused to re-consult counsel during questioning - The accused, with knowledge that he had the right to remain silent, chose to give a statement - See paragraphs 66 to 74.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators (incl. undercover officers) - [See second Civil Rights - Topic 4604 ].

Civil Rights - Topic 4612

Right to counsel - General - Waiver or abandonment of - [See second Civil Rights - Topic 4604 ].

Civil Rights - Topic 4620.7

Right to counsel - General - Right to have counsel present during questioning - The Supreme Court of Canada held that while the court had never directly ruled on the issue, s. 10(b) of the Charter did not entitle an accused to have a lawyer present during custodial questioning - The court stated that "we are not persuaded that the [United States] Miranda rule should be transplanted in Canadian soil. ... We conclude that s. 10(b) should not be interpreted as conferring a constitutional right to have a lawyer present during a police interview. There is of course nothing to prevent counsel from being present at an interrogation where all sides consent, as already occurs. The police remain free to facilitate such an arrangement if they so choose, and the detainee may wish to make counsel's presence a precondition of giving a statement" - See paragraphs 33 to 44.

Police - Topic 3107

Powers - Investigation - Questioning of suspects and witnesses - [See second Civil Rights - Topic 4604 ].

Cases Noticed:

R. v. Singh (J.), [2007] 3 S.C.R. 405; 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 2007 SCC 48, refd to. [para. 17].

R. v. Evans (W.G.), [1991] 1 S.C.R. 869; 124 N.R. 278, refd to. [para. 22].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 25].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 26].

R. v. Tremblay, [1987] 2 S.C.R. 435; 79 N.R. 153; 25 O.A.C. 93, refd to. [para. 27].

R. v. Black, [1989] 2 S.C.R. 138; 98 N.R. 281; 93 N.S.R.(2d) 35; 242 A.P.R. 35, refd to. [para. 27].

R. v. Friesen (C.S.) (1995), 174 A.R. 13; 102 W.A.C. 13; 101 C.C.C.(3d) 167 (C.A.), refd to. [para. 34].

R. v. Mayo (W.) (1999), 119 O.A.C. 151; 133 C.C.C.(3d) 168 (C.A.), refd to. [para. 34].

R. v. Ekman (G.) (2000), 140 B.C.A.C. 120; 229 W.A.C. 120; 146 C.C.C.(3d) 346; 2000 BCCA 414, refd to. [para. 34].

Miranda v. Arizona (1966), 384 U.S. 436, refd to. [para. 37].

Escobedo v. Illinois (1964), 378 U.S. 478, refd to. [para. 37].

California v. Beheler (1983), 463 U.S. 1121, refd to. [para. 39].

Yarborough v. Alvarado (2004), 541 U.S. 652, refd to. [para. 39].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 39].

Harris v. New York (1971), 401 U.S. 222, refd to. [para. 39].

Oregon v. Hass (1975), 420 U.S. 714, refd to. [para. 39].

United States v. Patane (2004), 524 U.S. 630, refd to. [para. 39].

R. v. Calder (M.), [1996] 1 S.C.R. 660; 194 N.R. 52; 90 O.A.C. 18, refd to. [para. 39].

R. v. Noël (C.), [2002] 3 S.C.R. 433; 295 N.R.1; 2002 SCC 67, refd to. [para. 39].

R. v. Logan, Logan and Johnson (1989), 30 O.A.C. 321; 46 C.C.C.(3d) 354 (C.A.), refd to. [para. 44].

R. v. Wood (D.A.) (1994), 135 N.S.R.(2d) 334; 386 A.P.R. 334; 94 C.C.C.(3d) 193 (C.A.), refd to. [para. 45].

R. v. Gormley (G.J.) (1999), 180 Nfld. & P.E.I.R. 181; 548 A.P.R. 181; 140 C.C.C.(3d) 110 (P.E.I.C.A.), refd to. [para. 45].

R. v. Baidwin (J.S.), 2001 BCSC 1412, affd. [2003] B.C.A.C. Uned. 104; 2003 BCCA 351, refd to. [para. 45].

R. v. Bohnet (R.) (2003), 339 A.R. 175; 312 W.A.C. 175; 111 C.R.R.(2d) 131; 2003 ABCA 207, refd to. [para. 45].

R. v. Anderson (W.R.) (2009), 448 A.R. 165; 447 W.A.C. 165; 243 C.C.C.(3d) 134; 2009 ABCA 67, refd to. [para. 45].

R. v. Weeseekase (R.L.) (2007), 302 Sask.R. 109; 411 W.A.C. 109; 228 C.C.C.(3d) 117; 2007 SKCA 115, refd to. [para. 45].

R. v. P.L.R. - see R. v. Ringer.

R. v. Ringer (1989), 85 N.S.R.(2d) 402; 216 A.P.R. 402; 44 C.C.C.(3d) 174 (C.A.), refd to. [para. 45].

R. v. Osmond (G.R.) (2007), 246 B.C.A.C. 274; 406 W.A.C. 274; 227 C.C.C.(3d) 375; 2007 BCCA 470, leave to appeal denied [2008] 1 S.C.R. xii; 385 N.R. 396; 269 B.C.A.C. 319; 453 W.A.C. 319, refd to. [para. 45].

R. v. Badgerow (R.) (2008), 240 O.A.C. 216; 237 C.C.C.(3d) 107; 2008 ONCA 605, refd to. [para. 45].

R. v. Burlingham (T.W.), [1995] 2 S.C.R. 206; 181 N.R. 1; 58 B.C.A.C. 161; 96 W.A.C. 161, refd to. [para. 46].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 46].

R. v. Willier (S.J.) (2010), 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 49].

R. v. Leclair and Ross, [1989] 1 S.C.R. 3; 91 N.R. 81; 31 O.A.C. 321, refd to. [para. 50].

R. v. Smith (J.L.), [1989] 2 S.C.R. 368; 99 N.R. 372, refd to. [para. 58].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 60].

R. v. Clarkson, [1986] 1 S.C.R. 383; 66 N.R. 114; 69 N.B.R.(2d) 40; 177 A.P.R. 40, refd to. [para. 79].

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, refd to. [para. 79].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 81].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 2001 SCC 14, refd to. [para. 88].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 93].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, refd to. [para. 99].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 108].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 109].

R. v. Waugh (B.) (2010), 259 O.A.C. 23; 2010 ONCA 100, refd to. [para. 110].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 110].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 110].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340, refd to. [para. 111].

R. v. D.H.W., [2008] 2 S.C.R. 235; 375 N.R. 217; 255 B.C.A.C. 1; 430 W.A.C. 1; 2008 SCC 33, refd to. [para. 119].

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 149].

Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 (H.L.), refd to. [para. 156].

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 156].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 156].

R. v. Turcotte (T.), [2005] 2 S.C.R. 519; 339 N.R. 32; 216 B.C.A.C. 1; 356 W.A.C. 1; 2005 SCC 50, refd to. [para. 158].

Fortin v. Barreau du Quebec, [2001] 2 S.C.R. 500; 272 N.R. 359; 2001 SCC 45, refd to. [para. 161].

Fortin v. Chretien - see Fortin v. Barreau du Quebec.

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 2002 SCC 61, refd to. [para. 162].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 162].

Christie v. British Columbia (Attorney General) et al., [2007] 1 S.C.R. 873; 361 N.R. 322; 240 B.C.A.C. 1; 398 W.A.C. 1; 2007 SCC 21, refd to. [para. 162].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 168].

R. v. McCrimmon (D.R.) (2010), 406 N.R. 152; 293 B.C.A.C. 144; 496 W.A.C. 144; 2010 SCC 36, refd to. [para. 183].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 191].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 192].

R. v. Yeh (K.-P.T.) (2009), 337 Sask.R. 1; 464 W.A.C. 1; 2009 SKCA 112, refd to. [para. 192].

R. v. Charron (S.) (1990), 30 Q.A.C. 223; 57 C.C.C.(3d) 248 (C.A.), refd to. [para. 204].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 219].

Authors and Works Noticed:

Allen, Ronald J., Miranda's Hollow Core (2006), 100 Nw. U. L. Rev. 71, p. 76 [para. 200].

Cassel, Paul G., Miranda's Social Costs: An Empirical Reassessment (1995-96), 90 Nw. U. L. Rev. 387, generally [para. 40].

Cassel, Paul G., and Fowles, Richard, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement (1997-98), 50 Stan. L. Rev. 1055, generally [para. 40].

Cassel, Paul G., and Hayman, Bret S., Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda (1995-96), 43 U.C.L.A. L. Rev. 389, generally [para. 40].

Godsey, Mark A., Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings (2006), 90 Minn. L. Rev. 781, generally [para. 41].

Lamer Commission Report - see Newfoundland and Labrador, The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes.

Leo, Richard A., Inside the Interrogation Room (1995-96), 86 J. Crim. L. & Criminology 266, generally [para. 40].

Newfoundland and Labrador, The Lamer Commission of Inquiry into the Proceedings Pertaining to: Ronald Dalton, Gregory Parsons and Randy Druken: Report and Annexes (2006), pp. 171 to 173 [para. 90].

Schulhofer, Stephen J., Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs (1996), 90 Nw. U. L. Rev. 500, p. 547 [para. 199].

Stewart, Hamish, The Confessions Rule and the Charter (2009), 54 McGill L.J. 517, pp. 520, 521 [para. 157]; 524 [para. 202].

Stuesser, Lee, The Accused's Right to Silence: No Doesn't Mean No (2002), 29 Man. L.J. 149, p. 150 [para. 37].

Weisselberg, Charles D., Mourning Miranda (2008), 96 Cal. L. Rev. 1519, generally [paras. 41, 200].

Younger, Evelle J., Results of a Survey Conducted in the District Attorney's Office of Los Angeles County Regarding the Effect of the Miranda Decision upon the Prosecution of Felony Cases (1966-67), 5 Am. Crim. L.Q. 32, generally [para. 199].

Counsel:

Gil D. McKinnon, Q.C., and Lisa J. Helps, for the appellant;

M. Joyce DeWitt-Van Oosten and Susan J. Brown, the respondent;

John S. McInnes and Deborah Krick, for the intervenor, the Attorney General of Ontario;

David Schermbrucker and Christopher Mainella, for the intervenor, the Director of Public Prosecutions of Canada;

P. Andras Schreck and Candice Suter, for the intervenor, the Criminal Lawyers' Association of Ontario;

Warren B. Milman and Michael A. Feder, for the intervenor, the British Columbia Civil Liberties Association;

Jonathan C. Lisus, Alexi N. Wood and Adam Ship, for the intervenor, the Canadian Civil Liberties Association.

Solicitors of Record:

Gil D. McKinnon, Q.C., Vancouver, B.C., for the appellant;

Attorney General of British Columbia, Vancouver, B.C., for the respondent;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Public Prosecution Service of Canada, Winnipeg, Manitoba, for the intervenor, the Director of Public Prosecutions of Canada;

Schreck & Greene, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association of Ontario;

McCarthy Tétrault, Vancouver, B.C., for the intervenor, the British Columbia Civil Liberties Association;

McCarthy Tétrault, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association.

This appeal was heard on May 12, 2009, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada.

On October 8, 2010, the judgment of the Court was delivered in both official languages and the following opinions were filed:

McLachlin, C.J.C., and Charron, J. (Deschamps, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 75;

Binnie, J., dissenting - see paragraphs 76 to 122;

LeBel and Fish, JJ. (Abella, J., concurring), dissenting - see paragraphs 123 to 227.