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R v Sinclair, 2011 SCC 40, [2011] 3 SCR 3. (Link)

Facts:

Sinclair (S) was arrested for the murder of Gary Grise (GG).

He was given one 3 minute phone call to his lawyer upon arrival at the police station. The lawyer was contacted by the police who said he would not be attending any interrogation. S spoke to his lawyer for another 3 minutes.

The police informed S of his rights constantly (i.e. did not have to answer any questions he did not want to) during the interrogation.

S repeatedly asked for the presence of a lawyer during his interrogation(s).

Police lied about finding evidence implicating S in the murder to guide S into a confession or giving incriminating evidence.

Sinclair did not give any incriminating evidence until he was unsure of whether he should reveal incriminating evidence.

S eventually admitted to the murder.

Police placed an undercover officer in cell with S where S admitted to the murder not realizing the individual was an officer.

S attended the scene of the crime to guide the officers in the events that took place.

Issue(s):

(1) Does a suspect under arrest have the right to a lawyer to be present during a police interrogation/investigation?

(2) Does a suspect under arrest have the right to reconsultation?

Ratio:

(1) A suspect under arrest does not have the right to a lawyer to be present during a police interrogation/investigation.

(2) A suspect under arrest does have the right to reconsultation in specific circumstances (list is not exhaustive):

(a) New, non-routine procedures, that the advising lawyer would not have expected at the time of the original consultation (i.e. a polygraph, a photo lineup, etc.).
(b) Change in jeopardy (i.e. new charges).
(c) Reason to believe the detainee did not understand his right to counsel.

Holding:

Appeal allowed and set aside the order for a new trial and restore the conviction.


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