There are many differences between the rights that Canadians enjoy, and the rights that they may think they enjoy because of American television. An interesting example is the right to "talk to my lawyer".
It is a staple of the second act of many American cop shows or movies – the scene where the smirking hoodlum frustrates a police interrogation by invoking his “Miranda” right and requiring the presence of counsel. Enter the glib, unctuous lawyer, oozing equal parts corruption and condescension, bringing the interview to a screeching halt. The reality in Canada, however, is much different than Law & Order (any of them).
Miranda rights are derived from a 1966 decision of the U.S. Supreme Court where the Court ruled that “the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment”. In Canada, section 10(b) of the Charter of Rights and Freedoms guarantees that someone arrested or detained by police (a “detainee”) has the right “to retain and instruct counsel without delay and to be informed of that right”. Related rights have been developed including a reasonable opportunity to contact the lawyer of your choice, and a right to speak to duty counsel free of charge. However, the Charter is silent as to whether a detainee has the right to have a lawyer present during an interrogation. The specific issue of whether Miranda rights exist in Canada was examined last year in the Supreme Court of Canada’s decision in R. v. Sinclair.
On December 14, 2002, Trent Sinclair was arrested by R.C.M.P. and charged with second-degree murder. He was immediately advised by police that he had the right to retain and instruct counsel, that he could call any lawyer he wanted, and that a Legal Aid lawyer would be available free of charge. At the police station, Sinclair indicated he wished to speak with a specific lawyer. He spoke with this lawyer by phone in a private room for about three minutes. About three hours later, Sinclair had another short call with the same lawyer. Each time, Sinclair told police he was satisfied with the call. Later that day, Sinclair was interviewed by a police officer for five hours. His lawyer was not present. Before the interview began, the officer confirmed with Sinclair that he had exercised his right to counsel and that he had a right to remain silent. Sinclair stated he had nothing to say “until my lawyer’s around”. The officer replied that his understanding of the law was that Sinclair had the right to consult his lawyer but did not have the right to have the lawyer present during questioning. At five points during the interview, Sinclair commented that he had nothing to say and that he wished to speak with his lawyer. He was not given this opportunity. The interview continued and Sinclair eventually admitted to stabbing the victim and disposing of the body in a dumpster. At trial, the judge ruled that the statement was admissible as it was voluntary and the police had not breached Sinclair’s right to counsel. Sinclair was convicted of manslaughter.
Ultimately, Sinclair appealed the decision to the Supreme Court. In a narrow 5-4 decision, the majority ruled that the Charter did not provide a right to have counsel present throughout an interrogation. The majority held that once the detainee had been advised of his right to counsel and been given a reasonable opportunity to consult with counsel, then police did not have to give the detainee an additional opportunity to speak to a lawyer unless certain “changed circumstances” arose during the investigation. Examples of such circumstances might include more serious charges being laid (such as a murder charge when the detainee had been arrested for aggravated assault), or the detainee being asked to take a polygraph. However, even then the detainee did not have a right to have a lawyer present during an interview. In sum, the Court was “not persuaded that the Miranda rule should be transplanted in Canadian soil”.
In Sinclair’s case, since he had twice spoken to his lawyer prior to his interview and no changed circumstances had occurred during the investigation, his Charter rights had not been breached. As a result, his appeal was dismissed and his conviction stood.
By the way, Sinclair was arrested in 2002, and the Supreme Court of Canada decision was released in October, 2010, eight years later. So, not only are the rights to counsel different, but the American method is considerably quicker, and always seems to be able to be wrapped up in just under an hour!
