No right to a lawyer during interrogation,Supreme Court rules - case summary below

R. v. Sinclair, 2010 SCC 35, just released, provides as follows:

After being arrested for murder, S was advised of his right to counsel, and twice spoke by telephone with a lawyer of his choice.  He was later interviewed by a police officer for several hours.  S stated on a number of occasions during the interview that he had nothing to say on matters touching the investigation and wished to speak to his lawyer again.  The officer confirmed that S had the right to choose whether to talk or not, however, he refused to allow S to consult with his lawyer again.  He also told S that he did not have the right to have his lawyer present during questioning.  The officer continued the conversation.  In time, S implicated himself in the murder.  At the end of the interview, the police placed S into a cell with an undercover officer.  While in the cell, S made further incriminating statements to that officer.  S later accompanied the police to the location where the victim had been killed and participated in a re‑enactment.  Following a voir dire, the trial judge ruled that the interview, the statements to the undercover officer, and the re‑enactment were admissible.  The trial judge found that the Crown had proven their voluntariness beyond a reasonable doubt, and that the police had not infringed S's rights as guaranteed by s. 10(b) of the Charter.  The Court of Appeal agreed.

The Supreme Court dismissed the appeal.

Section 10(b) of the Charter does not mandate the presence of defence counsel throughout a custodial interrogation.  Precedent is against this interpretation and the language of s. 10(b) does not appear to contemplate this requirement.  Moreover, the purpose of s. 10(b) does not demand the continued presence of counsel throughout the interview process.  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).

In the context of a custodial interrogation, the purpose of s. 10(b) is to support detainees' right to choose whether to cooperate with the police investigation or not, by giving them access to legal advice on the situation they are facing.  This is achieved by requiring that they be informed of the right to consult counsel and, if a detainee so requests, that he or she be given an opportunity to consult counsel. Achieving this purpose may require that the detainee be given an opportunity to re‑consult counsel where developments make this necessary, but it does not demand the continued presence of counsel throughout the interview process.  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.  

A request to consult counsel, without more, is not sufficient to re‑trigger the s. 10(b) right.  What is required is a change in circumstances that suggests that the choice faced by the detainee has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b).  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.

Existing jurisprudence has recognized that changed circumstances may result from:  new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the detainee may not have understood the initial advice of the right to counsel.  The categories are not closed.  However, additions to them should be developed only where necessary to ensure that s. 10(b) has achieved its purpose.  The change of circumstances must be objectively observable in order to trigger additional implementational duties for the police.  It is not enough for the detainee to assert, after the fact, that he or she needed help, absent objective indicators that renewed legal consultation was required to permit him or her to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.

S does not appear to fall into any of the categories where thus far a right to re‑consultation has been recognized as necessary to fulfill the purpose of s. 10(b).  The question is therefore whether the circumstances, viewed as a whole, indicate that S required further legal advice in order to fulfill the purpose of s. 10(b).  Developments in the investigation that suggest that the detainee may be confused about his choices and right to remain silent may trigger the right to a renewed consultation with a lawyer under s. 10(b).  That is not the case here.  It is clear from the trial judge's findings of fact that S never had any doubt about the choices the law allowed him and, in particular, his constitutional right to remain silent.  S twice spoke with counsel of his choice.  Both times, S told the police that he was satisfied with the call.  At the beginning of the interview, S said to the officer that he had been told about some of the devices the police might use to obtain information from him, including lying to him, and that he had been advised not to discuss anything important with anyone.  Later in the course of the interview, the police repeatedly confirmed that it was his choice whether he wished to speak with them or not.  The police did not denigrate the legal advice he had received and repeatedly confirmed that it was his choice whether he wished to speak or not.  There were no changed circumstances requiring renewed consultation with a lawyer.  No s. 10(b) Charter breach has therefore been established.

This interpretation of s. 10(b) does not give carte blanche to the police as contended.  This argument overlooks the requirement that confessions must be voluntary in the broad sense now recognized by the law.  The police must not only fulfill their obligations under s. 10(b), they must conduct the interview in strict conformity with the confessions rule.  In defining the contours of the s. 7 right to silence and related Charter rights, however, consideration must also be given to the societal interest in the investigation and solving of crimes.  Any suggestion that the questioning of a suspect, in and of itself, runs counter to the presumption of innocence and the protection against self‑incrimination is clearly contrary to settled authority and practice.  The police are charged with the duty to investigate alleged crimes and, in performing this duty, they necessarily have to make inquiries from relevant sources of information, including persons suspected of, or even charged with, committing the alleged crime.  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.