No right to lawyer during questioning, SCC rules

The Supreme Court of Canada in Ottawa, Thursday, Oct. 7, 2010. (Adrian Wyld / THE CANADIAN PRESS)
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Read the Supreme Court judgment here
CTV.ca News Staff

Date: Friday Oct. 8, 2010 3:04 PM ET

Canadian suspects of serious crimes do not have a constitutional right to have a lawyer present during questioning by authorities, the Supreme Court of Canada said today.

In three decisions released Friday, a sharply divided court ruled on a suspect's right to have counsel, specifically whether the Charter's right to counsel extends beyond being able to call and talk to a lawyer after being arrested.

In the central case, the court ruled 5-4 that Canadians have no right to have a lawyer sit in during an interrogation.

"The charter does not mandate the presence of defence counsel throughout a custodial interrogation," the majority decision said. "Precedent is against this interpretation."

The court said police cannot force a suspect to participate in an interrogation, but that the suspect does not have the right to have a lawyer there if they chose to participate in the interrogation.

"The police are not empowered by the common law or by statute, and still less by our Constitution, to prevent or undermine the effective exercise by detainees of either their right to silence or their right to counsel, or to compel them against their clearly expressed wishes to participate in interrogations until confession," the court stated.

The court specifically noted Canadians do not have the same rights as Americans do during interrogations.

"We are not persuaded that the (American) Miranda rule should be transplanted in Canadian soil," the majority decision said. "Adopting procedural protections from other jurisdictions in a piecemeal fashion risks upsetting the balance that has been struck by Canadian courts and legislatures."

In the same case, along with two other judgments, the court said a suspect has no right to re-consult a lawyer midway through an interrogation, except under some particular circumstances.

"Police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary," the court stated.

The Supreme Court also said there is no right for a suspect to have a particular lawyer, if that lawyer cannot be reached within a reasonable amount of time.

Two of the three cases had pointed dissents, arguing for looser rules.


Writing in dissent, Justice Ian Binnie said the majority sided for continued reduction of the right to counsel.

"What now appears to be licensed is that a presumed innocent individual may be detained and isolated by the police for at least five or six hours without reasonable recourse to a lawyer, during which time the officers can brush aside assertions of the right to silence or demands to be returned to his or her cell, in an endurance contest in which the police interrogators, taking turns with one another, hold all the important legal cards," he said.

The appeals

The three cases were brought to the Supreme Court in separate appeals from two British Columbia men and one man from Alberta

In the central case, Trent Terrence Sinclair of British Columbia was convicted of manslaughter in 2003 and had lost his appeals in that province.

When he was arrested he was informed of his right to counsel and he spoke to his lawyer twice, for three minutes each time.

During a five-hour police interrogation, Sinclair stated five times that he wanted his lawyer present.

The police officer deflected the requests, saying Sinclair did not have the right to counsel during the interview. Sinclair eventually implicated himself in the death of Garry Grice.

Oh yes, because the Republicans did such a great job last time they were in charge yes?  Anyone remember Bush Jr?