Law Times

PAGE 4 NEWS OcTOber 18, 2010 • Law Times Defence lawyers reeling at SCC rulings on right to counsel BY TIM NAUMETZ For Law Times OTTAWA — Criminal defence lawyers are reeling at the Su- preme Court of Canada's trilogy of rulings on the right to counsel during police interrogations, say- ing the new restrictions are a step backward and could contribute to wrongful convictions. Criminal lawyer Mark Ertel, past president of the Defence Counsel Association of Ot- tawa, and Paul Burstein, head of the Criminal Lawyers' Asso- ciation, both say they were sur- prised with what they termed a conservative majority ruling in two of the three cases. "It's crazy. I'd have never be- lieved that we live in a country where, fi ve hours into an inter- rogation, the guy asking to speak to his lawyer would be denied the right to speak to his lawyer and the courts would condone 2011 British Columbia Legal Telephone Directory The most comprehensive and affordable directory you can get Order your British Columbia Legal Telephone Directory today! Get names, mailing addresses, email addresses and phone numbers for lawyers and law offices in B.C., Nunavut, Northwest Territories and the Yukon In one handy volume you'll have a single means of access to every lawyer and law firm in B.C., Northwest Territories, Nunavut and the Yukon. Published annually, the current edition includes: • B.C. Notaries • B.C. Land Surveyors • Shorthand Reporter's Association • Canadian Association of Para-Legals • Northwest Territories, Nunavut and Yukon listings. 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Burstein calls the state of law following the rulings "absurd" and says they could have an im- pact not only on the chances of wrongful convictions but also guilty pleas to the wrong level of crime, such as to murder in- stead of manslaughter, in some circumstances. Th e majority decisions in R. v. Sinclair, R. v. McCrimmon, and, to a lesser degree, R. v. Wil- lier, give police the right to in- terrogate and pressure detainees through interview techniques for hours despite repeated insistence on the right to remain silent and renewed requests to speak to counsel after consultation with a lawyer at the outset of custody, according to Burstein and Ertel. Th e key case was Sinclair, in which the majority ruled that only a major development in the circumstances facing an ar- rested person could reasonably force police to accede to new requests for access to counsel after the detainee has already had an initial discussion with a lawyer, however brief, and the interrogation has begun. In that case, Trent Sinclair spent at least fi ve hours in a police interrogation room after a brief earlier telephone discus- sion with a lawyer following his arrest on a murder charge. Al- though the interrogating offi cer advised Sinclair he didn't have to say anything, he continued questioning him and denying repeated requests for another consultation with his lawyer. Eventually, after the offi cer questioned Sinclair about the murder scene, he broke down and described how he had Paul Burstein says he was shocked by the rulings and calls the state of the law 'absurd' as a result. stabbed a man who attacked him with a knife. Sinclair later made other incriminating state- ments to an undercover police offi cer in his cell. According to the ruling, the English wording of s. 10(b) of the Charter of Rights and Free- doms, which confi rms the right to retain and instruct counsel "on arrest or detention," doesn't imply either repeated consulta- tions over the phone or, as under the Miranda law in the United States, the continual presence of counsel in the room during the entire interrogation. Th e majority also rejected ar- guments in the dissenting opin- ions that its position gives "carte blanche" to police and noted confessions must continue to be voluntary and be found to be voluntary in court in the broad sense of current law. In defi ning the "contours" of s. 10(b) and s. 7, "consideration must also be given to the soci- etal interest in the investigation and solving of crimes," accord- ing to the decision. 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Justice Rosalie Abella concurred with the opin- ion from LeBel and Fish. "Many confessions obtained in extended police interroga- tions are true, but too many are not," Binnie wrote. He cited the recent case of Romeo Phil- lion, an Ontario man who con- fessed to a murder in 1972 af- ter he was arrested for robbery. He later recanted but spent 30 years in jail before the courts overturned the conviction and ordered a new trial. "Canada's growing platoon of the wrongfully convicted, including the by-now familiar roll call of Donald Marshall, Da- vid Milgaard, Guy Paul Morin, Th omas Sophonow, Ronald Dalton, Gregory Parsons, Randy Druker (sic), and others attests to the dangers of police tunnel vision and the resulting unfair- ness of their investigation." Burstein says he's shocked canadalawbook.ca For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business. Prices subject to change without notice, to applicable taxes and shipping & handling. LT1018 www.lawtimesnews.com — based on the facts involved in both Sinclair and McCrim- mon — at the extent and length of interrogations police will now be allowed to conduct despite repeated invocations of the right to silence and multiple requests for access to counsel. LT Lorne Folick, Michael Libby and Paul Dawson …and more!

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