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http://www.theglobeandmail.com/news/national/no-right-to-a-lawyer-during-interrogation-supreme-court-rules/article1749557/
Suspects in serious crimes do not have a right to consult their lawyer during a police interrogation, the Supreme Court of Canada said today.
The issue split the Court into two distinct factions, with the majority asserting that suspects cannot expect to halt an intense or heated interrogation in order to obtain ongoing legal advice.
No right to a lawyer during interrogation, Supreme Court rules
Kirk Makin
Globe and Mail Update
Published Friday, Oct. 08, 2010 11:17AM EDT
The issue split the Court into two distinct factions, with the majority asserting that suspects cannot expect to halt an intense or heated interrogation in order to obtain ongoing legal advice.
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In an attempt to bring clarity to the murky question of how the right to counsel applies during interrogations, the Court issued three judgments dealing with comparable interrogation-room scenarios.
A five-judge majority firmly sided with the police, saying that a suspect who has been granted his right to consult with counsel prior to an interrogation cannot later insist on seeing his lawyer again simply because he doesn’t like the way things are going.
Defence counsel condemned the rulings as being out-of-touch with the reality of law enforcement.
“It’s not a realistic understanding of what happens when someone is in police custody,” said Frank Addario, a Toronto lawyer. “I think it gives the police precisely the advantage that the right to counsel in the Charter was meant to deny them.”
“Five judges of the Supreme Court think it’s okay to detain and isolate people in Canada after they’ve spoken to a lawyer,” Mr. Addario added. “That’s not really a civil libertarian approach – it’s empathy for the interrogator.”
Chief Justice Beverley McLachlin and Madam Justice Louise Charron wrote the majority reasons on behalf of Madam Justice Marie Deschamps, Mr. Justice Marshall Rothstein and Mr. Justice Tom Cromwell.
Writing in dissent, Mr. Justice Ian Binnie criticized the majority for continuing a gradual clampdown on the right to counsel.
“What now appears to be licensed is that a presumed innocent individual may be detained and isolated by the police for at least five or six hours without reasonable recourse to a lawyer, during which time the officers can brush aside assertions of the right to silence or demands to be returned to his or her cell, in an endurance contest in which the police interrogators, taking turns with one another, hold all the important legal cards,” Judge Binnie said.
In separate dissenting reasons, Mr. Justice Louis LeBel, Madam Justice Rosalie Abella and Mr. Justice Morris Fish argued that the right to counsel is intended to aid citizens when they are at their most intimidated and vulnerable.
They said that suspects can easily become confused when they are confronted by police with bits and pieces of real or fictional evidence. Believing there is no hope, they may be induced to give up their right to silence.
“The right to counsel – and by extension, its meaningful exercise, cannot be made to depend on an interrogator’s opinion as to its opportunity or utility,” they said.
In the first case, the Court majority ruled that self-incriminating statements from Trent Terrence Sinclair, who was being interrogated about an alcohol-induced killing, were admissible at his trial.
Mr. Sinclair had spoken twice to a lawyer of his choice before he underwent an interrogation lasting several hours. He repeatedly refused to respond to questions and asked to speak to his lawyer again.
Police refused to let him do so, and insisted that Mr. Sinclair did not have the right to have his lawyer present during questioning.
Following his interrogation, Mr. Sinclair made a number of incriminating statements to an undercover officer who had been placed in his jail cell. He also took police to the scene of the killing and participated in a re-enactment.
“Had he been provided with an opportunity to consult counsel, the outcome would likely have been very different,” Mr. Justice Lebel and Mr. Justice Fish wrote.
They acknowledged that murder is a crime of the utmost severity.
“So, too, however is the right being protected,” they said. “The impact of the breach struck at the core of one of our most cherished legal protections – the right to silence and the protection against self-incrimination.”
But Chief Justice McLachlin and Judge Charron argued that a suspect can only “re-trigger” the right to counsel if something happens in the interrogation room that dramatically changes the situation, necessitating fresh legal advice.
“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,” they said.
But Judge Binnie said that defence counsel cannot be expected to offer effective advice to a suspect without knowing what is unfolding in an interrogation room.
He said that expecting a lawyer in an informational vacuum can only offer the equivalent of a phone message that states: “You have reached counsel. Keep your mouth shut. Press one to repeat this message.”
In the second case, another B.C. man – Donald McCrimmon – failed in his bid to overturn eight sexual assault convictions involving attacks on a series of women.
Mr. McCrimmon had been unable to reach his lawyer of choice prior to his interrogation, but he was granted a brief discussion with duty counsel.
During his ensuing interrogation, Mr. McCrimmon repeatedly asked to have a lawyer present. Police denied his requests. Mr. McCrimmon went on to make incriminating statements that were admitted at his trial.
The Supreme Court majority said today that the statements were properly introduced. They refused to grant Mr. McCrimmon a new trial.
In the third case, Stanley James Willier – an Alberta man acquitted in the 2005 stabbing of a woman – was ordered back for a retrial.
Prior to being interrogated, Mr. Willier had held two brief discussions with duty counsel. However, he became nervous during questioning and asserted his right to speak to a specific lawyer.
The Court majority said that the right to counsel is not open-ended. They said that, in essence, it was Mr. Willier’s own fault if he was unable to elicit the sort of legal advice he needed prior to his interrogation.
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