The right to legal advice

The requirement that a confession must be voluntary has several components. One is the right to silence, and waiver of this right must be informed and freely exercised (another requirement of voluntariness). The need for "informed" waiver of the right to silence is the reason that a caution has to be administered before a suspect is interviewed. The caution also contains information about the right to legal advice. This right to legal advice protects the "informed waiver" component of the right to silence, but it also extends to protect the ongoing requirement of voluntariness that continues throughout an interview. It should ensure that the suspect knows that he can exercise the right to silence at any time during questioning. The suspect is entitled to advice which will inform him of the significance of the questioning that will occur: its importance for potential proof of criminal liability. That means that the legal adviser needs to know what offences might be charged and the way in which liability for them might arise from the suspect's answers if he is to be questioned.

When one asks what the right to legal advice entails, this context of the right in relation to voluntariness of a potential confession needs to be remembered. Does this context make the operation of the right to legal advice in any particular case a matter for balancing against other interests, such as the public interest in the bringing of offenders to justice? Or is the right to legal advice an absolute right because of its being a component of the voluntariness of a confession?

This latter position, absoluteness, was taken by LeBel, Fish and Abella JJ in R v Sinclair [2010] SCC 35 (8 October 2010) and again in a companion case decided the same day, R v McCrimmon [2010] SCC 36. They said that what needs to be justified is a limitation on the right to legal advice, not the exercise of the right (McCrimmon at 39). Their concern with the power imbalance inherent in a police interview led them to repeat the dissent they had issued in Sinclair.

I should say, parenthetically, that it was illegal for those judges to repeat the dissent: since the matter was decided by the majority in Sinclair, they were obliged to follow the law and apply Sinclair. They could have still in McCrimmon reached the same conclusion as they did, by turning attention to the requirement of voluntariness. Unfortunately, the splitting of issues on appeal has led to the right to legal advice being considered in detail but without its important context of voluntariness. There was necessarily some mention of voluntariness, but this was more by way of aside (see, for example, the majority in Sinclair at 62).

The majority in Sinclair (McLachiln CJ and Charron J, with Deschamps, Rothstein and Cromwell JJ concurring) held that the right to legal advice involves an initial informing and a reasonable opportunity to exercise the right. It does not include a right to have counsel present throughout the interview. There may, during the course of an interview, be a need for a further opportunity for legal advice, but this arises only where it objectively appears that the initial advice could have been inadequate or where a new issue makes an opportunity for advice appropriate. It is not enough that the suspect merely wishes to interrupt an interview, as the suspect can exercise the right to silence. Fundamental to the majority's approach is the view that ascertaining the contours of the right to silence requires consideration of societal interests in the investigation and solving of crimes (Sinclair at 58, 63).

One would have to think very carefully before venturing to disagree with Charron J on a point of the law of evidence. Whether or not one agrees with the majority reasoning should depend on whether one accepts that qualifying the right to silence, by qualifying the right to legal advice, risks jeopardising the absolute quality of the requirement that a confession is made voluntarily. The majority's reasoning seems to be that qualifying those subsidiary rights may be acceptable as long as the voluntariness of any confession remains absolute. That would be analogous to reasoning that has been used in relation to rights associated with the accused's absolute right to a fair trial (see, for example, R(Ullah) v Special Adjudicator noted here, and with reference to judicial difficulties, 3 September 2004).

The Sinclair majority's reasoning is anchored to an appreciation of the "broad sense" of voluntariness required for confessions (Sinclair at 62), but unfortunately these cases have no detailed discussion of voluntariness. The majority makes great claims for the role of the voluntariness requirement (Sinclair at 64: "If anything, our reasons broaden the protection available to suspects, and narrow the ambit of police questioning"), and there will be many who read that sceptically. A consequence of finding no breach of the right to legal advice if there was no impact on the voluntariness of a confession is that there would be no need for the balancing exercise to determine the admissibility of the confession (in Canada, the Grant balancing) in such cases. Of course, if there was an impact on voluntariness, exclusion would be automatic. But cases of lesser police impropriety would be immune from judicial criticism in the form of exclusion. A very "broad" sense of voluntariness would be needed to address those.

Also decided the same day was R v Willier [2010] SCC 37, in which the Court unanimously held that on the facts there was no breach of the right to legal advice. Each of the approaches, so different in philosophy, can still lead to agreement on particular facts.

There is a brief but interesting discussion of the relevance of foreign law (here Miranda) to the question of the meaning of the right to legal advice, in Sinclair at 38-42.

See also my discussion of R v Singh, 2 November 2007. And for the position in Europe, see Salduz v Turkey [2008] ECHR 1542 at para 50-55.