OP I N ION
BY PHILIP SLAYTON TOP COURT TALES
At least they'll be well-fed
A few parting comments about the Supreme Court in 2010, as we wave goodbye to an undistinguished year.
M
y vote for the year's worst decision of 2010 goes to R. v. Sinclair. Trent Sinclair was arrested for murder.
He briefly consulted with a lawyer of his choice. Then the police set about questioning him at great length. During questioning, Sinclair said several times that he wanted to speak to his lawyer, but was told he couldn't. Later, Sinclair con- fessed to the crime, and was convicted of manslaughter. He argued the Charter of Rights and Freedoms imposes a duty on the police to stop questioning a detainee who indicates a desire to speak with counsel again. Sinclair said that, because he was denied this right, his confession was not admissible into evidence. Chief Justice Beverley McLachlin and
Justice Louise Charron gave judgment for a bare five-judge majority (justices Marie Deschamps, Marshall Rothstein, and Thomas Cromwell agreed with them). The purpose of the s. 10(b) Charter right to counsel, they said, was principally to ensure a detainee was advised of his right to remain silent. There is no right to receive ongoing advice about how to deal with police questions. If there is a material change in the detainee's circum- stances (for example, the investigation takes a new and more serious turn), he may "reconsult" his lawyer to seek advice on whether to continue to co-operate, but only then. Sinclair, said the judges, always understood that he had the right to remain silent, and the right to recon- sult did not arise in his case.
16 JAN UARY 2011 www. CANADIAN Lawye rmag.com
