SCC ruling on right to counsel during interrogation – October 10, 2010

On Friday, 8 October 2010 the Supreme Court of Canada handed down three judgments which say that an accused person does not have an unrestricted right to consult with their lawyer during police questioning.

The SCC considered three separate cases in which the suspect asked, mid-interrogation, to consult with his lawyer again. Section 10 (b) of the Canadian Charter of Rights and Freedoms states that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” But a 6:3 majority of judges found that providing the accused with an initial phone call to a lawyer is sufficient to protect the person’s Charter right to counsel, unless and until something changes during police questioning to justify another phone call. The degree of change that will be needed remains an open question.

It may be that the average Canadian will have a sense that rights have been removed through these decisions. But the (false) impression that someone has a right to have a lawyer present during questioning might come from American TV shows that depict police issuing Miranda warnings to suspects. What the SCC is saying is that a right to counsel during interrogation has never existed under Canadian law.

I have yet to read each of the judgments in full. If you want to get a head-start, read R v Sinclair [2010] SCC 35, R v McCrimmon [2010] SCC 36, and R v Willier [2010] SCC 37.

The Globe and Mail and Toronto Star have articles on the SCC decisions.