Is talking to the police always a wise thing to do?

At 6:30 a.m. on Saturday, December 14, 2002, Mr. Trent Sinclair was arrested by members of the Vernon, British Columbia, detachment of the Royal Canadian Mounted Police. He was charged with killing a Mr. Garry Grice. After being arrested, Mr. Sinclair was advised by the police of his right to counsel, and twice he spoke by telephone with a lawyer of his choice. He was then placed in a cell in which an undercover officer, Constable Sergio L.B. Dasilva, had previously been placed into the same cell and was waiting for Sinclair. The suspect blabbed about his role in the killing to the undercover officer.

Later he was brought out of the cell and taken to an interview room to be questioned. At the beginning of the interview, Sergeant Skrine Sinclair advised Sinclair of his right to remain silent and of his right to counsel. The officer also told Sinclair that the interview was being recorded and could be used in court. After Mr. Sinclair answered a few questions as to where he had grown up, he stated:

“I’m just gonna say right now, I don’t have anything to say right now. I don’t know what they figure they have on me or don’t have on me or what’s going on and I’m not saying anything or talking about anything that’s until my lawyer’s around and he tells me what’s going on and stuff, like that.”

Despite having said that, he was interviewed by the police officer for several hours without his lawyer being present. Mr. Sinclair on a number of occasions during the interview; told the police that he did not want to talk to the officer and wished to speak with his lawyer again. Despite his request to speak to his lawyer again, the officer and Mr. Sinclair continued their conversation and, eventually, Mr. Sinclair implicated himself in Mr. Grice’s death. At the end of the interview by the police, Mr. Sinclair accompanied the police to where Mr. Grice had been killed and participated in a re-enactment of the killing of Mr. Grice. He was charged with manslaughter.

At the beginning of the trial, a voir dire was held. (a trial within a trial in which the voluntariness of his confessions was looked into) Following the voir dire, the trial judge, Mr. Justice Powers of the Supreme Court of British Columbia, ruled that the interview, along with Mr. Sinclair’s statements to the undercover officer, and his re-enactment of the crime were admissible. He found that the Crown (prosecutor) had proven the voluntariness of the interview and the re-enactment beyond a reasonable doubt, and that nothing done by the police in their dealings with Mr. Sinclair had infringed his rights as guaranteed by sections. 7 and 10(b) of the Charter.

Section 7 of the Canadian Charter of Rights states that everyone has the right to life, liberty and security of the person and cannot be deprived of it except in accordance with the principles of fundamental justice. Section 10(b) states that everyone has the right to retain and instruct counsel without delay and to be informed of that right. The right of all suspects to contact a lawyer and seek the advice of the lawyer is paramount with respect to the accused’s freedom to choose whether to make a statement or not.

In his appeal, Mr. Sinclair did not contest the finding of the trial judge that his statements during the interview were voluntary. The reason was obvious. He had an opportunity to speak with his lawyer and I am confident his lawyer told him to keep his mouth shut.

Notwithstanding that good advice, Mr. Sinclair blabbed away and not only told the police interviewer everything, he even blabbed about the circumstances of his role in the crime to the undercover cop in his cell and then he took the police to the scene of the crime and showed them how he killed Mr. Grice.

He later abandoned his appeal with respect to challenging the trial judge’s ruling with respect to a breach of section 7 of the Charter. With the Crown’s consent, he added a ground, not raised in his factum, (legal arguments) alleging that his s. 10(b) Charter rights were violated when the police did not allow him to have his lawyer present at the interview. However, later Mr. Sinclair conceded this ground must be dismissed also given the Court’s decisions in other cases in which the Supreme Court of Canada refused to hear similar appeals because the Supreme Court was satisfied that a detainee does not have the right to have a lawyer present during an interview.

Mr. Sinclair had been taken from his cell at 4:38 p.m. to be interviewed by Sergeant Kerry Skrine. The interview was audio-taped and video-taped.

Sergeant Skrine told Mr. Sinclair that it was his decision whether to say anything, but added that he was not entitled to have his lawyer present during the interview. I should add that it is not wise for lawyers to be present during police interviews because if their clients blurb out something that can be used against their clients and their clients later deny making the statements, their lawyers can be made to take the stand and testify as to what they heard. If that happens, the lawyer can be removed from the case because he cannot be a witness and an advocate in the same case.

Sergeant Skrine stated at the voir dire that he told Mr. Sinclair his rights, and that it was for Mr. Sinclair to decide whether to talk to the police. He explained that the police are required to advise persons who have been arrested of their right to counsel. Sergeant Skrine stated that it was his understanding that Mr. Sinclair had twice spoken with his lawyer, and that Mr. Sinclair had indicated he was satisfied with having been given the opportunity to have done so. Sergeant Skrine then repeated that Mr. Sinclair was not entitled to have his lawyer present during the interview, and that it was for Mr. Sinclair to decide whether to answer his questions without his lawyer being present.

The interview continued for approximately four and one-half hours. As it progressed, Sergeant Skrine revealed more and more about the evidence the police had gathered, referring to it as being ‘overwhelming’. Sergeant Skrine suggested to Mr. Sinclair that he might have an explanation for what had happened, such as alcohol or rage. He also suggested that Mr. Grice may not have been without fault.

This interrogation technique is common when police are questioning suspects. If the suspect at first denies killing the victim, it is because he believes that he will be sent to prison for a long time. If the police raise a possible defence, such as self defence or uncontrollable rage or alcoholism, it lowers the suspect’s defences and he takes the easy way out by using one of those mitigating defences. That then connects the suspect to the killing by showing that there was a motive or some other reason why he killed the victim. Whatever the motive may have been, the suspect in his earlier statement would have denied any involvement with the killing. In this particular case however, Sinclair didn’t fall for that trick.

At one point, Sergeant Skrine stated that the police had found a number of blood stains on the floor of a motel room Mr. Sinclair had occupied. Mr. Sinclair said the stains were there when he moved in. When Sergeant Skrine said that it was important to find out what had caused the stains, Mr. Sinclair stated, “Well I got nothing more to say on that anyways. Like I already told you, the stains were there.” Shortly thereafter, Sergeant Skrine said that he knew the blood was Mr. Grice’s, and that he did not want Mr. Sinclair to lie about it being there before he arrived.

Sergeant Skrine disclosed the existence of two witnesses who had seen Mr. Sinclair trying to clean the blood stains in his motel room. The officer played a portion of a video-taped statement made by one of those witnesses, and then asked Mr. Sinclair for an explanation of what had happened:

Mr. Sinclair then said again, “I wanna talk to my lawyer.” This kind of conversation carried on for another moment.

Sometime after this, Sergeant Skrine left the interview room. When he returned, he told Mr. Sinclair that the police had found Mr. Grice’s body and the bedding from the motel room. He further stated that Mr. Sinclair’s D.N.A. was on the bedding (which was not true). At this point, Mr. Sinclair stated “You got me I know it”, and told Sergeant Skrine what had happened the night of Mr. Grice’s death.

It’s an old police trick to convince the suspect that the police have evidence that will convict the suspect when in fact they don’t have such evidence. But if the statement by the police gives a good explanation as to why the so-called evidence is strong enough against the suspect, he will cave in and confess. Years ago during a murder investigation in Toronto involving several suspects, the police showed their main suspect a signed confession of one of the other suspects. The confession was not signed by anyone other than the police. It was a forgery. Nevertheless, once the main suspect saw the so-called confession, he confessed.

Mr. Sinclair was returned to his cell at 9:42 p.m. The undercover officer, Constable Dasilva said to Sinclair once he was in the cell, “That was a long time, it must be serious.” Mr. Sinclair responded, “They’ve got me, the body, the sheets, the blood, the fibres on the carpet, witnesses. I’m going away for a long time but I feel relieved.” When asked what he meant by “relieved”, Mr. Sinclair said that he would not have to look over his shoulder anymore for the police. Mr. Sinclair also mentioned that he was prepared to do a re-enactment for the police since he had nothing to lose by doing it. He hoped the courts would look at him favourably for co-operating with the police.

Mr. Sinclair then explained the events leading to Mr. Grice’s death to Constable Dasilva, essentially repeating what he had told Sergeant Skrine. Later that same night, Mr. Sinclair accompanied the police to where Mr. Grice had been killed and took part in a re-enactment. During the re-enactment, which was audio-taped and video-taped, he repeated what he had earlier told the police about what had happened.

Now at this juncture of the story, I will say that there should be no doubt in anyone’s mind that Mr. Sinclair was guilty of the killing of Mr. Grice. Further, he wasn’t threatened or beaten nor was he promised that if he confessed, he would get a better deal when it came to sentencing. These would have been sufficient grounds for the court to throw out the confession and everything that followed it, including the re-enactment of the crime.

There is an adage in law that says that you cannot eat the fruit of the poisoned tree. What this means is that if you obtain a confession by improper means, every piece of evidence that you obtained as a direct result of that evidence cannot be used against the suspect. For example, if he was threatened and as a result of the threat, he told the police where a gun was, once the gun is found, it cannot be submitted to the jury as part of the evidence of the crown.

The trial judge’s reasons for admitting Mr. Sinclair’s statements are comprehensive both in terms of the facts and the law. Before beginning the analysis of the specific issues at the voir dire, the trial judge had noted that the Crown was required to prove the voluntariness of Mr. Sinclair’s statements to Sergeant Skrine, and his participation in the re-enactment, beyond a reasonable doubt. He also noted that the onus was on Mr. Sinclair to prove any alleged breaches of his Charter rights on a balance of probabilities.

Balance of probabilities is best described in this manner. Each party presents the evidence to the court and slowly the scales begin to tip. At the end of the trial, the winner is the party which has tipped the scales in his favour.

In holding that the police are not required to terminate an interview when a detainee asks to speak with counsel again, the trial judge said: “I am satisfied that the law is clear that once the person has been advised of their rights under Section 10(b), and exercised those rights to retain and instruct counsel, the police can then continue to interview them. If the person simply says, “I do not wish to say anything on advice of counsel,” or simply they do not wish to say anything, the police can continue to question them. They are not obliged to stop, nor are they obliged to allow defence counsel to be present during that portion of the investigation or interrogation.”

I should point out that even if the police are persistent in continuously asking questions, every person being questioned can be equally persistent by saying, “I don’t wish to answer your questions.”

Innocent people will feel that by answering the questions, they will convince the police that their description of the events or their alibi is secure. But sometimes that can backfire. Many innocent people have been convicted in the past by what they said to the police during the initial interview. You have to remember that there are only two reasons why a suspect is being questioned. The first reason is to learn what really happened and the second reason is to obtain a confession. The suspect who tries to explain his innocence my get tripped up on what he says and finds that his innocent explanation can be twisted into the formation of a crime of which he is innocent of having committed.

For example, suppose the suspect was walking down an alleyway and he finds a body next to a dumpster. He is innocent of any crime. But if someone sees him standing next to the body and cries out to him and he runs away, there will be an inference that he was the person who committed the crime. If he denies to the police that he was the person the witness saw standing next to the body, the suspicion of the police will be heightened to a point that they will presume that he committed the crime. From then on, they will look no further for the real killer. However, if he chooses to say nothing to the police, they have only the word of a witness and everyone knows that eyewitness testimony is often highly unreliable. He stands a better chance of being acquitted if he keeps his mouth shut when being interviewed by the police. If he on the other hand admits that he was standing in the alley for an hour waiting for his girlfriend before he discovered the body, he will have a hard time convincing the court that someone else committed the crime. If the medical examiner determines that the man was killed sometime during that hour, the police will be convinced that the suspect was the only man who could have killed the victim. This is what is called, ‘tunnel vision’. In other words, the investigators won’t further make any serious effort to determine if the real killer may have exited the alley by entering one of the doors in the alley leading into a store.

A guilty person is equally better off keeping his mouth shut for he can be tripped up into accidentally disclosing facts that he thinks is harmless enough but nevertheless, facts that will lead him right into prison or worse.

What the police cannot do is override the suspect’s rights or be overbearing, thusly thwarting the person’s right to choose between talking to the police or keeping his mouth shut. Some interrogations may get to the point where they are so oppressive or overbearing that they basically take away the person’s right to choose or the person is no longer voluntarily deciding whether to speak. If that occurs, then the confession cannot be used.

The trial judge found that Mr. Sinclair had exercised his right to counsel following his arrest, and that during the interview he was aware that it was his choice whether to continue to speak to Sergeant Skrine when the judge said; “ Mr. Sinclair did have the opportunity to retain and instruct counsel and there was sufficient time to ensure that he was advised as to what his rights were and I am satisfied by his own comments that he understood his right was to remain silent and to choose whether to speak or not. Nobody ever tried to tell him that he did not have that right.”

It is clear that Mr. Sinclair understood what his rights were and it is clear that it was his decision whether he was going to speak or not. Although he might have liked to have been able to talk to his lawyer more than once, he understood what his choice was and that the police were not obliged after he had been able to retain counsel, to give him a further opportunity once the interview had commenced. If he wasn’t sure how to answer a particular question, all he had to do was simply not answer the question.

Once a detainee has exercised his or her right to counsel, the police are entitled to use legitimate means to persuade him or her to speak. I see no policy reason for providing a detainee, who does not have the right to terminate an interview by stating “I wish to remain silent”, the peremptory right to do so by stating, “I want to talk to my lawyer again.” If he wanted to terminate the interview, as I said earlier, all he had to do was keep his mouth shut. The duty on the police to ‘hold off’ with their questioning of Sinclair ended after Sinclair had a reasonable opportunity to exercise his right to speak with a lawyer. The police are not required to ‘hold off’ because a detainee wishes a further opportunity to consult with his or her lawyer.

As to the voluntariness of the interview, the trial judge held: “I am satisfied beyond a reasonable doubt that Mr. Sinclair voluntarily disclosed his involvement in this offence to Sergeant Skrine. What, in my opinion, happened in this case is that all of the efforts that Sergeant Skrine made to try and encourage Mr. Sinclair to speak were successful. Mr. Sinclair stood up to them very well. At the end of the day, when Mr. Sinclair realized that the police had all the evidence they needed to convict him, he decided that he would talk and get it off his chest, that he would tell the police what happened and he did so quite voluntarily and confirmed that when he was back in cells with the undercover officer.

Another issue that came up in Sinclair’s appeal was whether or not the evidence of the undercover police officer could be used against Mr. Sinclair.

Mr. Sinclair’s statements to Constable Dasilva were held admissible on the basis that the undercover officer was not a person in authority, and had not attempted to elicit any information from Mr. Sinclair other than say, about Sinclair being questioned by the police before he was returned to the cell, “That was a long time, it must be serious.” Had he begun the conversation by asking Sinclair particulars of the crime, that could be construed as a form of interrogation by a police officer and as such, he would be required by law to inform Mr. Sinclair of his right to remain silent because as a police officer conducting an interrogation, he was a person of authority. But because Sinclair talked freely on his own volition by replying to the undercover police officer’s question by saying to the officer; “They’ve got me, the body, the sheets, the blood, the fibres on the carpet, witnesses. I’m going away for a long time but I feel relieved.” That was an unsolicited admission of guilt.

The trial judge also admitted the evidence of the re-enactment on the basis that Mr. Sinclair had participated in it voluntarily. He further held that, in the circumstances, the police were not required to “re-Charter or re-warn” Mr. Sinclair.

It is important to keep in mind the principle underlying the right to counsel entrenched in s. 10(b) of the Charter. Simply put, it is to ensure that persons who are in the vulnerable position of just having been arrested or detained are informed of their right to obtain timely legal advice, particularly with respect to their right to remain silent. This is evidenced by the judgment of Chief Justice Lamer of the Supreme Court of Canada in 1994 in which the court said in part;

“The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfill those obligations.” In another case, that court said in part in 1987; “This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him - or herself. Accordingly, a person who is “detained” within the meaning of section 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty.” The right to counsel protected by section 10(b) of the Charter is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.

This purpose is also reflected in another Supreme Court’s judgment. Although the case also deals with the use of an undercover police officer to obtain information from a detainee, Madam Justice McLachlin, as she then was, discussed the relationship between the right to silence under section 7 of the Charter, and the right to counsel under section 10(b). She said that it is clear that the section 10(b) right serves to ensure that a detainee is in a position to make an informed choice as to whether to speak to the police or to remain silent.

The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is his right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers at the disposal of the state, is entitled to rectify the disadvantage by speaking to legal counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces. Read together, sections 7 and 10(b) confirm the right to silence.

However, the mere fact that a detainee asserts his or her right to silence does not necessarily preclude the police from using legitimate means of persuasion to change that person’s mind.

One way to do that is convince the suspect that they have evidence that will convict him. Naturally the suspect will want to ask what that evidence is and the conversation will then continue onward.

The balancing of societal and individual rights is an important factor that one has to consider in situations like this one.

I can’t over-stress the importance of achieving a proper balance between the individual’s right to choose whether to speak to the authorities and society’s interest in uncovering the truth in crime investigations.

For example, the suspect may be the most fruitful source of information. While the fact of detention unquestionably triggers the need for additional checks on police interrogation techniques because of the greater vulnerability of the detainee, the moment of detention does nothing to reduce the suspect’s value as an important source of information. Provided that the detainee’s rights are adequately protected, including the freedom to choose whether to speak or not, it is in society’s interest that the police attempt to tap this valuable source.

I am of the opinion that the right to silence does not require a police interview to automatically terminate upon the detained person who has consulted counsel, then indicating to the police that he does not wish to speak. In the Sinclair case, he was well aware of his right to remain silent but his subsequent decision to confess was his done of his own free choice, made in full knowledge of his right not to do so. He could have simply sat there listening to the police rambling on and on asking him questions and making comments and at the same time, keeping his teeth clenched as a sign that he had no intentions of giving them any information whatsoever.

If my position on this issue is correct, I cannot see how there can be a constitutional duty on the police to stop the interview when none such duty otherwise exists. The interests protected by section 10(b) of the Charter are served when a detainee is afforded an opportunity to obtain legal advice on how to exercise his or her rights. Once the police have fulfilled their obligations to a suspect under section 10((b), they are entitled to 'attempt to tap this valuable source'. This is what occurred in Mr. Sinclair’s case. And that, unfortunately for Mr. Sinclair was what got him convicted. I should add however that it was in the best interests of the public that the police continued with their interview of Mr. Sinclair.