Right to Counsel During Custodial Interrogation in Canada: Not Keeping Up with the Common Law Joneses


Right to Counsel During Custodial Interrogation in Canada: Not Keeping Up with the Common Law Joneses



COMPARATIVE ANALYSIS OF criminal evidence, procedure and human rights from a Canadian perspective might begin by noting three distinctive features of Canada’s legal landscape. First, while Canada is traditionally seen as a bi-juridical country,1 its law of criminal evidence and procedure is grounded primarily in the common law. Thus it is well-placed to contribute to, and benefit from, more self-conscious methods of common law comparativism.

Second, Canada has had almost 30 years to develop expertise in the protection of the human rights of persons affected by the criminal justice system, since the adoption in 1982 of the Canadian Charter of Rights and Freedoms.2 The Charter is Canada’s on-going ‘human rights revolution’. It includes both great aspirational provisions, such as rights to equality3 and fair trial,4 and more focused guarantees, such as the right to counsel.5 The law relating to evidence-gathering by state officials such as the police must satisfy minimal constitutional standards. This affects, for instance, the meaning of the right to counsel during custodial police interrogation. There are thus constitutional, as well as legislative and common law layers to the Canadian legal framework for balancing the rights of suspects and the accused with the protection of individual and societal interests in the effective investigation and prosecution of crime. In Canada, attention to the human rights dimension of criminal evidence and procedure typically means attention to constitutional adjudication.

A third notable feature of the Canadian legal landscape introduces an international dimension. Customary international law is understood to assist in the interpretation of the Charter. In R v Hape6 a majority of the Supreme Court of Canada stated that ‘[a]bsent an express derogation, courts may look to prohibitive rules of customary international law to aid in the interpretation of Canadian law’.7 In United States v Burns8 the Court was influenced in its interpretation of the concept of ‘fundamental justice’, which appears in section 7 of the Charter, by Canada’s anti-death penalty initiatives impacting internationally and increasing opposition to the death penalty in most of the world’s democracies.9 Canada has also played a leadership role in the creation of the International Criminal Court (ICC),10 which notably includes a right to the presence of counsel during interrogation, as discussed below.11 To the extent, therefore, that common law comparativism may influence the development and interpretation of human rights in the criminal justice system, the Canadian experience reveals that influence may permeate all three primary levels of the legal landscape: case-law; ordinary legislation; and constitutional law. Constitutions set minimum standards which the law must meet. While common law jurisdictions are accustomed to influence each other in terms of common law precedent and legislative policy, drawing on common law comparisons to influence constitutional adjudication is a more radical proposition. Common law is typically subject to constitutional standards, rather than the reverse. Thus common law influence on the constitution might be seen as an inappropriate ratcheting-up of enshrined constitutional standards. A similar point can be made about attention to international rules which are not binding on Canada. Before turning to such arguments, we introduce our case study of the right to counsel.

Access to counsel during custodial interrogation is a Charter issue in Canada and so it presents a possible role for common law comparativism in constitutional adjudication. We argue that Canadian constitutional interpretation should include a ‘tipping point’ principle.12 This principle triggers a call for remedial action where analysis of other common law jurisdictions and international aspirations shows that Canada has fallen behind in the protection of human rights.


The Canadian Supreme Court’s decision in R v Sinclair13 turned on the meaning of the right to retain and instruct counsel in section 10 of the Charter.14 These are the material facts, as summarised by the British Columbia Court of Appeal:

Trent Terrence Sinclair was convicted by a jury of manslaughter in the killing of Garry Grice. After being arrested, Mr Sinclair was advised of his right to counsel, and twice spoke by telephone with a lawyer of his choice. He was later interviewed by a police officer for several hours. Mr Sinclair stated on a number of occasions during the interview, that he did not want to talk to the officer and wished to speak with his lawyer again. However, the officer continued the conversation and, eventually, Mr Sinclair implicated himself in Mr Grice’s death. At the end of the interview the police placed Mr Sinclair into a cell with an undercover officer and he made similar incriminating statements to that officer. Later, Mr Sinclair accompanied the police to where Mr Grice had been killed and participated in a re-enactment.15

The Supreme Court held that there was no obligation on the police to stop questioning Sinclair to allow him to communicate further with counsel. The Court unanimously rejected a general right to the presence of counsel during custodial interrogation. A majority rejected a right of access to counsel except where changed circumstances justify access to further advice. Thus, in Canada, detained persons have a right of access to counsel on initial arrest or detention, but only a limited on-going right to counsel.16 This is in significant contrast to the law applicable in, for instance, England and Wales, the United States, New Zealand, several Australian States, and several international courts, including the ICC. Can the Supreme Court be legitimately criticised for taking a narrower view of the right to counsel in Canada?


As a starting point in exploring this question, there is significant jurisprudential support for the following principles of constitutional adjudication:17

— purposive interpretation;

— progressive, or ‘living tree’, interpretation;

— ‘basic tenets’ interpretation;

— substantive equality interpretation;

— avoidance of wrongful convictions interpretation; and

— international interpretation.

This section elucidates each principle in turn, with particular reference to the right to counsel and the methodology of common law comparativism.

(a) Purposive Interpretation

Sinclair itself illustrates the established approach of interpreting Charter rights and freedoms in accordance with their purpose. However, the Court was divided on the threshold question of the purpose of the right to retain and instruct counsel following arrest or during detention. The majority took the view that the purpose of section 10(b) was to inform detainees about their legal rights such as the right to remain silent. The dissenting judges saw it as a more general protection of detainees which operates to restore some balance between state agents and individual suspects, for example by safeguarding suspects from feeling compelled to participate in lengthy interrogations without the benefit of informed legal advice.18 None of the justices turned to other common law jurisdictions to help identify the purpose.

This was in significant contrast to the Court’s approach in Hunter v Southam Inc,19 which considered English and US authorities in unanimously establishing the purposive method and applying it to section 8 of the Charter, the right to be secure against unreasonable search or seizure. Having rejected English case-law focusing on the protection of property, the Court was influenced by US case-law in holding that section 8 implies a right of privacy.20

(b) Progressive Interpretation

Hunter is one of a series of precedents embedding a progressive approach to constitutional interpretation, conceptualising the constitution as a ‘living tree’21 requiring expert judicial cultivation so that it does not become stunted or grow wild and misshapen. In another well-known example, Reference re Same-Sex Marriage,22 the Supreme Court was asked to determine the constitutionality of federal same-sex marriage legislation, stating that a ‘large and liberal, or progressive, interpretation ensures the continued relevance and, indeed, legitimacy of Canada’s constituting document’.23 It is therefore part of Canada’s constitutional tradition to be open to the evolution of concepts such as ‘person’ and ‘marriage’. Such openness, as contrasted with narrow doctrinal analysis, is conducive to other common law jurisdictions influencing domestic constitutional adjudication. A striking example of such influence is R v Golden,24 in which one question for the Court was ‘whether the common law in Canada authorizes strip searches carried out as an incident to arrest and, if so, whether the common law is consistent with s 8 of the Charter’.25 The majority thought it helpful to ‘review the law concerning warrantless personal searches in the United Kingdom and the United States’ in order to interpret the common law power consistently with section 8, and concluded:

In this connection, we find the guidelines contained in the English legislation, PACE concerning the conduct of strip searches to be in accordance with the constitutional requirements of s 8 of the Charter. The following questions [specifying guidelines for the conduct of strip searches], which draw upon the common law principles as well as the statutory requirements set out in the English legislation, provide a framework for the police in deciding how best to conduct a strip search incident to arrest in compliance with the Charter ….26

Not only did the Court in Golden draw heavily on another common law jurisdiction to create a strikingly detailed common law scheme to satisfy constitutional standards, it did so in a way that reflected the principle of equality, to which we will turn shortly. Yet in Sinclair, Justice Binnie, in a somewhat tart dissent, was the only member of the Court to mention the ‘liberal and generous interpretation… so often trumpeted in our jurisprudence’.27

(c) Basic Tenets

Notwithstanding its commitment to progressive interpretation, the Court has frequently also been influenced by established legal doctrine. This is particularly evident with respect to the concept of ‘fundamental justice’ in section 7 of the Charter. It is said that the ‘principles of fundamental justice are to be found in the basic tenets of our legal system’.28 The common law of other countries has been understood to be a source of basic tenets. Thus in R v Seaboyer,29 the Court addressed the constitutionality of restrictions on sexual history evidence in sexual assault trials:

The real issue under s 7 is whether the potential for deprivation of liberty flowing from ss 276 and 277 [of the Criminal Code] takes place in a manner that conforms to the principles of fundamental justice. The principles of fundamental justice are the fundamental tenets upon which our legal system is based. We find them in the legal principles which have historically been reflected in the law of this and other similar states.30

Not only does this ‘basic tenets’ principle31 provide an interpretational route for the transformation of common law into constitutional law; it also supplies a comparativist opportunity for the transformation of the law of other common law jurisdictions into Canadian law.

One might therefore expect argument about the right of access to counsel to include reference to corresponding legal rights in other common law jurisdictions. This did indeed happen in Sinclair, although most strikingly in the attention to lack of evidence of a uniform right to counsel. The Court was unanimous in rejecting any perceived Americanisation of the right to counsel.32 The majority rejected the adoption ‘in a piecemeal fashion’33 of procedural protections from other countries. Binnie J left it up to legislators to decide whether Canada should follow foreign examples.34

The concept of ‘basic’ or ‘fundamental’ tenets leaves much room for debate. Widespread support in the common law world for a right to silence (albeit with jurisdictional variations) means that people who have not been arrested or detained are generally free to have their lawyer present during police questioning. It seems counter-intuitive that an undetained person is free to insist on the presence of a lawyer (or indeed to refuse to be questioned at all) while a person under the control of the police may be obliged to submit to questioning, although not, in Canada, obliged to answer, since negative inferences from silence are not permitted. The lack of a right of access to counsel during the ‘black hole’35 of custodial interrogation might be regarded as derogating from the ‘basic’ rights of all citizens and the equally ‘basic’ right to counsel during trial proceedings. In addition, the absence of any such procedural ‘black hole’ in common law countries with similar procedural traditions might be thought to underscore the fundamental importance of access to counsel at all stages of the criminal process.

It is at this level of generality, pre-empting concerns about ‘piecemeal’ adoption, that the values reflected in other common law jurisdictions are most helpful. A striking contrast to Sinclair can be found in Grant v Torstar,36 in which the Court introduced a responsible journalism defence to the tort of defamation to satisfy section 2(b) of the Charter (protecting freedom of expression) and bring Canadian common law into step with other jurisdictions. The Court observed:

[M]any foreign common law jurisdictions have modified the law of defamation to give more protection to the press, in recognition of the fact that the traditional rules inappropriately chill free speech. While different countries have taken different approaches, the trend is clear.… The time has arrived… for this Court to follow suit.37

In contrast with the Supreme Court’s more parochial approach in Sinclair, in Grant v Torstar the balance between expression and reputation struck in the laws of the United States, England, Australia, New Zealand and South Africa influenced Canadian constitutional adjudication at the level of basic values. In finding that the tipping point in favour of introducing a defence of responsible journalism had been reached, the Court simultaneously modified Canadian common law and recalibrated the constitutional weighting of freedom of expression.38

(d) Substantive Equality

Section 15 of the Charter grants equality rights. In R v Kapp,39 a unanimous Supreme Court re-emphasised its commitment to substantive equality as opposed to merely formal equality with its ‘sterile’, similarly-situated test. The ideal is that ‘all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration’.40

Elaborating the equality precept, the Supreme Court in R v Golden41 invoked what might be characterised as an ‘anti-racism principle’ in evaluating the harms incidental to strip-searches:

[E]ven the most sensitively conducted strip search is highly intrusive. Furthermore, we believe it is important to note the submissions of the [African Canadian Legal Clinic and the Aboriginal Legal Services of Toronto, interveners] that African Canadians and Aboriginal people are overrepresented in the criminal justice system and are therefore likely to represent a disproportionate number of those who are arrested by police and subjected to personal searches, including strip searches… As a result, it is necessary to develop an appropriate framework governing strip searches in order to prevent unnecessary and unjustified strip searches before they occur … Women and minorities in particular may have a real fear of strip searches and may experience such a search as equivalent to a sexual assault … The psychological effects of strip searches may also be particularly traumatic for individuals who have previously been subject to abuse.42

The Canadian approach to equality is developing (some might say floundering) in its own distinctive way, without much evident borrowing from other legal jurisdictions. As a principle of constitutional interpretation, critiques are more numerous than direct applications. Thus the Court in R v Singh43 has been criticised for its failure to be more attentive to the ‘heightened vulnerability of Aboriginal and racialized individuals in custody not only to violence but to waive their constitutional rights’.44 Similarly, in Sinclair, in spite of counsel’s arguments about the impact of incommunicado interrogation on vulnerable individuals, there is precious little discussion of the equality dimensions of the right to counsel.

Attention to equality principles would have significantly enriched the Court’s analysis. The protection and promotion of equality requires legal doctrine to be sensitive to the varying social locations and needs of all who may be interrogated by the police in isolation. Some people are particularly susceptible to suggestion, and are thus in heightened danger of making false confessions. Individuals suffering from particular disabilities such as foetal alcohol spectrum disorder spring to mind;45 as do the particular risks for women of being isolated in police stations. The equality rights of women subjected to police interrogation support effective and on-going access to counsel. It is disturbing, to say the least, that agents of the state should be able to keep women suspects isolated from their legal counsel during interrogation.46

A comparative approach might address neglected issues in two ways. First, although comparative legal method brings to mind comparison of laws and legal systems, comparisons of social realities could challenge complacent assumptions and draw attention to the scope for enhancing practical protection of human rights. Thus comparative empirical research revealing the dangers to women and other vulnerable groups in police custody might inform analysis of a right of access to counsel.47 Secondly, responses adopted in jurisdictions with similar legal cultures can offer reassurance about the feasibility and suitability of adopting new approaches.

(e) The Avoidance of Wrongful Conviction

Heightened judicial awareness of the risks of miscarriages of justice has important implications for the developing right of access to a lawyer. A muscular right to custodial legal advice could help diminish false confessions even where the suspect is not a member of a particularly vulnerable group.48 The Supreme Court has expressed concern about wrongful convictions linked to false confessions on various occasions. In R v Oickle49 Iacobucci J, for the majority, signalled ‘growing understanding of the problem of false confessions’:

[T]he confessions rule is concerned with voluntariness, broadly defined. One of the predominant reasons for this concern is that involuntary confessions are more likely to be unreliable. The confessions rule should recognize which interrogation techniques commonly produce false confessions so as to avoid miscarriages of justice.50

A dramatic illustration of judicial attention to both social and legal realities elsewhere, when contemplating the risks of miscarriages of justice, can be found in the Supreme Court’s unanimous judgment in United States v Burns:

In recent years… the courts and governments in this country and elsewhere have come to acknowledge a number of instances of wrongful convictions for murder despite all of the careful safeguards put in place for the protection of the innocent. The instances in Canada are few, but if capital punishment had been carried out, the result could have been the killing by the government of innocent individuals. The names of Marshall, Milgaard, Morin, Sophonow and Parsons signal prudence and caution in a murder case. Other countries have also experienced revelations of wrongful convictions, including states of the United States where the death penalty is still imposed and carried into execution.51

(f) International Interpretation

Numerous cases illustrate the influence of international law on Charter issues. In addition to the Burns Court’s discussion of the death penalty, one might mention Suresh v Canada (Minister of Citizenship and Immigration),52 in which the Court considered the constitutionality of deporting an individual on security grounds who risked torture on their return home:

The inquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law, including jus cogens. This takes into account Canada’s international obligations and values as expressed in ‘[t]he various sources of international human rights law—declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, [and] customary norms’…53

The Court was not only referring to binding international law. A ‘complete understanding of the [Immigration] Act and the Charter requires consideration of the international perspective’.54 In order to interpret the Canadian constitution in accordance with the dictates of fundamental justice:

International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself.55

We have already referred to Canada’s leadership role in the creation of the ICC, which built on previous Canadian sponsorship of international criminal tribunals. Against this backdrop, Sinclair