Right to Counsel

Section 10 of the Canadian Charter of Rights and Freedoms, in part, reads: 

“10. Everyone has the right on arrest or detention 

(b)  to retain and instruct counsel without delay”


In October 2010, the Supreme Court of Canada released a trilogy of decisions that shed new light on an accused’s right to counsel. Most notably, the decisions highlight the stark differences in the right to counsel between the law of Canada and the United States.  This article summarizes two of those decisions, that reflect the current state of the law of the right to counsel in Canada. 


In R v. Sinclair, the accused was arrested for murder.  After being advised of his right to counsel, he spoke with his lawyer over the phone. After twice speaking his lawyer, the police interrogated him.  Over the course of the interrogation, the accused stated repeatedly that he did not wish to answer questions relating to the investigation and that he wanted to speak to his lawyer. The interrogating officer refused to allow him to have further contact with his lawyer and continued questioning. A short while later, the accused admitted to the murder.  Chief Justice McLachlin, writing for the majority, stated that the US Miranda rule should not be “transplanted on Canadian soil.” The majority stated that s. 10(b) requires counsel to be present during interrogation. Rather, only if developments occur, such as a change in police procedure (e.g. police changing tactics from questioning to a polygraph test) or a change in jeopardy (e.g. where new information uncovers a more serious crime) is the accused entitled to halt the questioning and contact a lawyer.  


The court stated a variety of reasons for not importing Miranda rights to Canadian law. In the US, Miranda rights are triggered once the person is “in custody” In In Canada, the right to counsel under s. 10(b) is invoked in cases where a person upon detention, which is considered a more expansive term and includes psychological detention. Furthermore, an incriminatory statement obtained in violation of s. 10(b) could be excluded from trial under s. 24(2), where it would bring the administration fo justice in disrepute.  In the US, evidence obtained in violation of Miranda rights could be used to impeach the accused’s credibility at trial. Miranda rights only apply while a person is in police custody.  In Canada, a person’s right to counsel is triggered upon being detained. Courts in Canada has given a broad interpretation to the meaning of “detention,” and has even included psychological detention.  The Supreme Court cited academic research which is inconclusive in showing whether Miranda rights have been beneficial or detrimental to law enforcement in the United States; also, research has sown that 80% of suspects waive their Miranda rights, and so it provides only illusory protections to the vast majority of individuals who are subject to interrogation. 


In R v. McCrimmon, the accused was arrested for a series of assaults.  Upon his arrest, he was warned of his rights to silence and counsel. He first asked for a specific lawyer that he had known, but this lawyer could not be reached.  The police then suggested he contact Legal Aid, to which he agreed.  The Supreme Court referred to an earlier case of R v. Ross for the principle that s. 10(b) on entitles the detainee to a “reasonable opportunity” to contact his/her counsel of choice. During this “reasonable” time period (which will vary dependent on the facts of the particular case), police must hold off questioning until either the counsel of choice is contacted or the time period lapses. In this case, although at the suggestion of the police, the accused accepted counsel from Legal Aid and effectively exercised his right to counsel under s. 10(b). Upon conferring with duty counsel over the telephone, the accused exercised his s. 10(b) rights and could be interrogated by police without a lawyer being physically present. 


These decisions serve to rebuff common perceptions about a suspect’s rights upon arrest. In a typical courtroom drama television series, police detectives arrest the suspect, and reads the suspect his/her right to silence and right to counsel. The police cautions the suspect that anything that is said can be used against him at trial. The suspect might then invoke his right silence and refuse to talk to the police until his lawyer arrives.  At this point, the police cannot continuing to question the suspect. This scenario, common in all legal dramas, is more or less an accurate representation of the law in the United States.  In the US, police cannot interrogate a suspect once the suspect has invoked his Sixth Amendment right to counsel. In Miranda v. Arizona, the United States Supreme Court held that statements obtained from an accused during police interrogations were only admissible if, prior to the interrogation, the police to warned the suspect of his/her rights to remain silent under the 5th Amendment and their right to counsel under the 6th Amendment and that the suspect expressly waived those rights.  


With the Supreme Court of Canada’s recent pronouncements on the right to counsel, it is clear that this is one area of law where there are clear differences between the US and Canada. 


Jeremy Ho, 2nd Year Law Student, University of Victoria

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