Understanding Canadian Law Four-Book Bundle by Daniel J. Baum

Author:Daniel J. Baum
Language: eng
Format: epub
Publisher: Dundurn Press
Published: 2015-08-19T00:00:00+00:00

The Sinclair Case: The Decision

The Charter rights raised in the Sinclair case are:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right (section 10(b)).

Any person charged with an offence has the right not to be compelled to be a witness in proceedings against himself/herself in respect of the offence (section 7).

Any confession with respect to any charged offence must be informed and voluntary.

The Majority Decision

Chief Justice McLachlin and Justice Charron, as noted, wrote the majority opinion in which Justices Deschamps, Rothstein, and Cromwell concurred, thus making the Court judgment a 5–4 decision. Their primary focus was on section 10(b) of the Charter. If that section could be read as guaranteeing a right to counsel even during police interrogation, that would have been the end of the matter. Sinclair would have won the case. Police denial of the right to his counsel to sit in on the interrogation of Sinclair would have been ruled unconstitutional because it would have violated the Charter.

However, the Court majority did not give section 10(b) that reading. Rather, the majority stated that a “deeper purposive analysis is required.” Essentially, the arrested person has a decision to make in the exercise of his/her section 10(b) right to counsel — whether to co-operate with police interrogation, or not. The Court majority stated:

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