Case Comment - R v Sinclair

        Justices LeBel and Fish (dissenting) disagreed with Justice Binnie’s reasoning, concluding that “the right to counsel is inextricably bound up with, although not subsumed by, the right to silence.”  Their view was that Mr. Sinclair’s s.10(b) right was violated by his interrogators’ refusal to allow him additional consultation with his lawyer irrespective of the circumstances.  Accordingly, a mere request to speak with counsel would be a justification for  retriggering a detainee’s s.10(b) right.

3. LEGAL CONTEXT OF THE RIGHT TO COUNSEL

        

        Sinclair is part of a trilogy of companion cases released by the SCC on October 8, 2010, regarding the limits of the right to counsel and their implications for the admissibility of confessions to police.  In all three cases, the court limited the scope of s.10(b) of the Charter and set new boundaries to reject arguments from counsel for the accused.  As illustrated in the case summary, the judgement in Sinclair definitively ruled out the disclosure of evidence to the accused during interrogation as grounds for retriggering the right to counsel. R v McCrimmon affirmed the rule from Sinclair but also noted that there is no exception for an accused who is forced to resort to legal aid because the counsel of their choice is unavailable.  Lastly, R v Willier concluded that police are not obligated to monitor the quality of a detainee’s legal advice. 

         In both Sinclair and McCrimmon, judges were divided on what the scope of s.10(b) was during interrogation.  While the majority concluded that neither situation warranted a renewed right to counsel, Justices LeBel and Fish maintained in both cases that repeated requests for counsel during a “lengthy interrogation” are enough to retrigger a detainee’s 10(b) right.  In contrast, Justice Binnie took a position in both cases that was situated between the two polarized viewpoints.  His assertion that the “one size fits all” right to counsel is insufficient implied that the confession in Sinclair was involuntary, but did not take issue with the end result in McCrimmon.  The key issue in both of his analyses was whether or not it was possible to locate a point in time where a change of circumstances suggested that an additional opportunity to speak with counsel would be useful.  While in Sinclair there was a specific moment when the accused requested his right to counsel, in regards to incriminating evidence that was disclosed to him in McCrimmon it was impossible to “flag a point in time or an issue on which a further consultation could be considered ‘reasonably justified by the objective circumstances’ ”.   

        Sinclair reflects the Crown’s claim that acknowledging a reengagement of Mr. Sinclairs’s s.10(b) right would inappropriately convert s.10(b) into a result oriented right rather than a procedural one.  This argument is a marked departure from past judgements of the SCC.  In Sinclair, the majority’s description of s.10(b)’s purpose is derived from a passage cited from R v Hebert with a striking omission.  The following passage is omitted from Sinclair with ellipses: “The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces.”  Sinclair does acknowledge that changing circumstances can necessitate “further advice from counsel” in order to allow a detainee to make a meaningful choice.  However, the omission of the passage above re-emphasizes the majority’s position that the facts of  Sinclair did not involve a change in circumstances.

4. THE RIGHT TO COUNSEL: A MEANINGFUL CHOICE?

        The issue of changing circumstances is a fundamental point of disagreement between Justice Binnie and the majority. His views on s.10(b) have roots in the decision of R v Bartle, which conclusively stated that “…s.10(b) is about providing detainees with meaningful choices”.  In Sinclair, Justice Binnie’s main criticism of the majority’s decision was their reluctance to acknowledge that the value of legal advice is dependent on its relevance to the detainee’s current circumstances.   His remarks about the worthlessness of a one-time consultation bear a strong resemblance to Justice Wilson’s analogy in R v Black: “If the Crown’s argumentation on this point were sound, each time an accused was asked to blow into a breathalyser there would be no need to advise the accused of his s.10(b) rights, since it might be assumed that counsel would advise the accused that he should submit to the breathalyser on the basis that failure to do so constitutes a criminal offence.”  While this point of view has merit in light of the dangers posed by false confessions, it is also a departure from the way s.10(b) has been treated in case law.  Hebert, for instance, postulates that “the most important function of legal advice upon detention is to ensure the accused understands his rights, chief among which is his right to silence.” This principle is consistent with R v Brydges, another decision the same year which linked the right to silence with the right to counsel.   It has been assumed by the courts that any gaps left by this proposition can be addressed by applying the confessions rule.

5. APPLICATION OF THE CONFESSIONS RULE IN SINCLAIR

The most recent authority of the confessions rule is found in Oickle.  The confessions rule in Oickle was described by Justice Iacobucci in four parts: threats or promises, oppression, operating mind, and police trickery.  Whether or not Justice Binnie’s assessment of the impact of Oickle is excessively harsh, there are at least two valid concerns related to how this rule was applied by the majority in Sinclair.  First, the judgement in Oickle is based on the notion that “the Charter is not an exhaustive catalogue of rights.  Instead, it represents a bare minimum before which the law must not fall.  A necessary corollary of this statement is that the law, whether by statute or common law, can offer protections beyond those guaranteed by the Charter.”  This principle is arguably in contradiction with Sinclair’s narrow interpretation that “[t]he scope of s.10(b) of the Charter must be defined by reference to its language.”  A second concern arises when the analysis from Oickle is applied to conclude that confronting a suspect with fake evidence does not retrigger the right to speak with a lawyer.  This conclusion seemingly ignores Justice Iacobucci’s statement that confronting a suspect with fake evidence is a relevant consideration of whether or not a confession is voluntary in the first place.  His judgment is clear that entirely fabricated evidence poses a greater danger than other inadmissible evidence (such as polygraph). With these concerns in mind, they still do not preclude the argument that the judgement of Oickle is inherently problematic.   Justice Binnie’s criticism  is rooted in the significant implications that both Oickle and Sinclair have for the right to counsel and the admissibility of confessions.

6. THE PHENOMENON OF FALSE CONFESSIONS

        Justice Binnie’s argument in Sinclair for a flexible approach to the right to counsel is justified at least partially, if not entirely, by the phenomenon of false confessions and the danger of wrongful convictions.  In order to prevent false confessions, Canadian common law has mandated that the objective requirement of voluntariness must be satisfied before a confession can be admitted as evidence.  Although much of society treats confessions as incontrovertible proof of guilt, many confessions have been definitively proven as false.  Although the only such incident cited by Justice Binnie’s in Sinclair was Romeo Phillion, a man who falsely confessed to murder, false confessions for less serious charges are widespread.  Examples include Michael St. John, who falsely confessed to assaulting his son in 1998, and Dwight Grant, who falsely confessed to sexually assaulting a student in 1992.  Incidents like these have fed to criticism of the Reid Technique, whose interrogation strategies were largely approved of in Oickle and were affirmed in Sinclair.  Specifically, several criticisms have been raised about the “Behavioural Analysis Interview” (or BAI) phase of the Reid Technique, where the “interviewer” (i.e., the interrogator) makes a subjective assessment of the suspect’s guilt.  Studies have shown that police officers are unable to properly detect deception, and that as they gain more training and experience they build a greater propensity to view the suspect as guilty.  One of the most troubling features of the Reid Technique is the presumption of guilt that evidently follows an assessment of guilt in the BAI.  

         The Reid Technique, used by “[t]he vast majority of Canadian Police Officers who receive training for suspect interviewing”, poses a threat to both the right to counsel and the right to silence.  In McCrimmon, not only did the police reject the detainee’s repeated requests for additional consultation with his lawyer, they also made efforts to subvert his right to silence.  This is particularly problematic because studies have shown that some detainees will confess even when they are innocent, either because of individual characteristics or the interrogation techniques used by the police.  For example, individuals with “compliant personalities” will be more inclined to please members of authority and will avoid confrontation, which means that they may agree to a story that is different than how they actually remember it.  Studies suggest that even entirely legitimate police investigations can elicit false confessions,  since those who have a compliant personality will often confess without the application of pressure during  interrogation.   

        These studies imply that there is an inherent power imbalance that can only be remedied with a more expansive interpretation of the confessions rule and/or the right to counsel.  The relegation of the right to counsel to a subset of the right to silence, a principle unanimously affirmed in Sinclair with the exception of Justice Binnie, will only perpetuate this problem.  As Justice Binnie remarked, a constant use of the right to silence is not a panacea for every situation, since sometimes an innocent detainee is best served by full or partial co-operation with the authorities.  These consequences are discussed in detail in the wrongful convictions section.

        Further concerns arise from the classification of the disclosure of incriminating evidence during interrogation as a change in circumstances that does not constitute a right to re-consultation with a lawyer.  This in itself would be enough to raise concerns for its implications in the area of false confessions.  However, the problem is exacerbated with Chief Justice McLachlin and Justice Charron’s remark that even the use of fake evidence is permissible within the bounds of s.10(b). This concern is substantiated by American psychological studies, which have established a strong link between fake evidence and the probability of false confessions.  To borrow the words of Professor Saul M. Kassin, “confronting innocent individuals with false evidence not only increases the risk of a false confession, it also increases the risk that the individuals will internalize a false belief in their guilt.”

        Sinclair’s affirmation of the Oickle confessions rule compounds this problem. Professor Dale E. Ives criticizes Oickle’s unrealistic requirement that police conduct be egregious enough to “[shock] the community” in order to satisfy the “police trickery” feature of the confessions rule.  In fact, studies have shown that an unpopular defendant can create a palpable community sense of prejudice against an innocent accused, rendering this requirement virtually impossible to meet.  This point has particular resonance with wrongful convictions, given its relevance to issues of class and racism.  It is also relevant that police misconduct is less likely to be challenged or even detected if it is against lower class or marginalized groups of society.

7. WRONGFUL CONVICTIONS

        As mentioned in Justice Binnie’s dissent in Sinclair, wrongful convictions are a growing problem. Though there have been no comprehensive studies on the topic in Canada, it is widely agreed upon that false confessions are the most common cause of wrongful convictions.   In 2004, it was estimated that false confessions accounted for between fourteen and twenty-five percent of wrongful convictions in the United States. Professor Gary T. Trotter asserts that “almost every major academic study of wrongful convictions has pointed to false confessions as an important contributing factor.”   The case of wrongfully convicted Canadian Guy Paul Morin is illustrative of this assertion.  Police interrogated him in a room covered with pieces of evidence such as enlarged fingerprints and photographs of clothing from the victim: “The purpose of this charade was to convince the suspect that a special task force working on the case was in possession of sufficient evidence to secure a conviction.”   It is in situations like these where the implications of Sinclair are most powerful.  One would assume that the advice given by a lawyer to Mr. Morin upon his initial arrest would be substantially different than any advice that he would receive after confronted with this new evidence.  Given the fact we know now that he was innocent, it is conceivable that an alibi or some information disassociating Mr. Morin with the evidence could have had a tremendous impact on the outcome of that investigation.

        Although it cannot be said that all legal counsel will have the level of expertise necessary to prevent a false confession or a wrongful conviction, there is an abundance of useful legal advice that strays from a strict adherence to the right to silence.  For example, during Gregory Parson’s interrogation (who was later wrongfully convicted), the RCMP decided that Mr. Parson’s reference to his mother as “her” instead of “mom” was suspect, and his reference to the “night” his mother died proved he knew his mother died and was an indication of guilt.  It is situations like these that suggest “360 seconds of legal advice” is often insufficient to fulfill a meaningful application of s.10(b).

8. CONCLUSION

        In Bartle, Chief Justice Lamer (as he was then)  remarked, “breaches of s.10(b) tend to impact directly on adjudicative fairness.”  It is clear that this statement has roots in both jurisprudence and the causal link between the right to counsel, false confessions, and wrongful convictions.  Though it is impossible to predict who the next Guy Paul Morin or Donald Marshall Jr. will be, the consequences of Sinclair’s explicit limitations on s.10(b) and affirmation of the Oickle confessions rule are inevitable. There was no compelling evidence presented in Sinclair that this particular right would allow a guilty suspect to go free by re-exercising his/her right to counsel.  Furthermore, the notion that allowing a detainee to understand his legal rights will undermine the legal system is contrary to reason.  Not only does a wrongful conviction put an innocent individual in prison, it also allows a guilty individual to roam free.  For these reasons, a more expansive interpretation of s.10(b) and a re-evaluation of the confessions rule would benefit Canadian society as a whole.  

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