No “Miranda rights” in Canada: Supreme Court

In a 5-4 decision (R. v. Sinclair, 2010 SCC 35), Supreme Court of Canada refused to import U.S. “Miranda rights” to Canada.

From Calgary Herald “No right to lawyer during police interrogation: Supreme Court” (emphasis added),

“A deeply divided Supreme Court of Canada refused Friday to import U.S. “Miranda rights” to Canada, ruling that it would frustrate criminal investigations and slow down the justice system to impose a constitutional guarantee for suspects to have lawyers present during police interrogations.

By a 5-4 margin, the nine-member bench said that the right to counsel entails a phone call and consultation after arrest, but it does not extend to having lawyers in police interview rooms.

“We are not persuaded that the Miranda rule should be transplanted in Canadian soil,” Chief Justice Beverley McLachlin and Justice Louise Charron wrote for the majority.

“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.”

The majority added that the prevailing view in courts nationwide is that “we should not (and cannot) change the law of Canada so as to forbid the police to talk to a detained suspect unless defence counsel sits in and rules on each question.”

Justices Louis LeBel and Morris Fish, writing a biting dissent for the minority, warned that the majority ruling “carries significant and unacceptable consequences for the administration of criminal justice and the constitutional rights of detainees in this country.”

The dissenting judges asserted the majority’s fear that the administration of justice would grind to a halt is groundless, since it has not come to fruition in the United States in the nearly 50 years since it adopted Miranda rights, despite dire predictions by naysayers at the time.

In a separate dissent, Justice Ian Binnie said that denying suspects the right to counsel during interrogations gives police a “trump card.”“

Here are some background info about the case from “No right to lawyer in police interview: top court“, CBC News (with video),

“In the case of R. vs. Sinclair, the justices split 5-4. In that case, Trent Terrence Sinclair was arrested by the RCMP from Vernon, B.C., in December 2002 and charged with second-degree murder in connection with the killing of Gary Grice the previous month. Sinclair was ultimately found guilty of manslaughter by a jury.

At the time of his arrest, Sinclair was advised of his right to counsel, and spoke twice by phone with his lawyer. During an hours-long interview with police, Sinclair said several times that he had nothing to say and wanted to talk to his lawyer again.

The police officer who conducted the interview said Sinclair had the right to keep quiet, but refused to allow him to contact his lawyer and told him he did not have the right to have a lawyer present.

Sinclair eventually implicated himself during the interview. He was then placed in a holding cell with an undercover officer, where he made further incriminating statements.

Sinclair later accompanied the police to the site where Grice had been killed and participated in a re-enactment.

Statements ruled admissible

At trial, following a voir dire, the judge said the interview, the statements to the undercover officer, and the re-enactment were all admissible.

A court of appeal agreed with that decision, and the Supreme Court upheld the appeal ruling.”

Quoting from R. v. Sinclair, 2010 SCC 35,

“Per McLachlin C.J. and Deschamps, Charron, Rothstein and Cromwell JJ.:  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.”