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R v Sinclair, 2010 SCC 35 (Link)

Facts:

-The appellant (Mr. Sinclair) was charged with the second degree murder in the November 21, 2002 killing of Gary Grice and convicted by a jury of manslaughter.
-Upon arrest the appellant was advised of his right to instruct counsel without delay.
-The appellant chose not to consult counsel until after he was booked into a RCMP detachment.
-The appellant spoke with his lawyer in a private room for 3 minutes and indicated to officers that he was satisfied with the phone call.
-The appellant consulted counsel for the same duration in a similar setting at the request of counsel.
-The officer then began an interrogation of the accused lasting approximately 5 hours.
-The accused expressed discomfort during the interrogation that counsel was not present but the officer continuously reiterated to the appellant that it was his decision whether or not to answer the questions.
-The officer further expressed a view that the appellants s.10(b) Charter rights had been satisfied.
-The appellant refused to answer questions about the crime 4-5 times during the interrogation.
-Eventually the appellant begins to describe the crime. Later, the appellant is placed in a cell with an undercover officer and states “they’ve got me”.
-The appellant also accompanied police to the scene of the crime and participates in a re-enactment.

Issue(s):

-Whether a detainee who has been properly accorded his or her s.10(b) rights at the outset of the detention has the constitutional right to further consultations with counsel during the course of the interrogation.

Ratio:

-In what circumstance must the police give the detainee additional opportunity to consult with counsel?
-In a custodial interrogation, what is the purpose of s.10(b)?

Analysis:

-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 co-operate with the police or not.
-s.10(b) does not guarantee that the detainee’s decision is wise; nor does it guard against subjective factors that may influence the decision.
-s.10(b) is a specific right directed at one aspect of protecting the right to silence (the opportunity to secure legal counsel).

-s.10(b) fulfills its purpose in 2 ways:
a. it requires that the detainee be advised of his right to counsel; and
b. it requires that the detainee be given an opportunity to exercise his right to
consult counsel.
-.s10(b) does not mandate the presence of defence counsel throughout a custodial interrogation.
-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 advise relevant to his right to choose whether or not to cooperate with the police investigation or not.
-A detainee has a right to re-consult with counsel if (but not limited to):
a. new procedures involving the detainee arise (polygraph, line-up, etc);
b. there is a change in jeopardy; and
c. there is a reason to question the detainee’s understanding of the s.10(b)
rights.
-Under these circumstances, Mr. Sinclair had no right to re-consult with counsel.

Holding:

-Appeal dismissed.

Comments:

Dissent:
-The purpose of s.10(b) is to advise the detainee how to deal with police questions.
-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.


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