One of the most important protections for anyone detained or arrested in Canada is the right to counsel. It helps level the playing field during a police investigation by ensuring people understand their legal situation before they make decisions that could affect their case. In British Columbia and across the country, confusion often comes up around what this right looks like during long or intense questioning.
A key Supreme Court of Canada decision, R. v. Sinclair, explains the scope and limits of the right to counsel during detention. If you are being questioned by police, this case is essential to understanding what you can ask for, what police must do, and what your options are in the moment.
The Right To Counsel Canada Under Canadian Law
Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees that anyone who is arrested or detained has the right to retain and instruct counsel without delay, and to be informed of that right. In practical terms, police must:
- Tell you that you have the right to speak with a lawyer
- Give you a reasonable opportunity to contact a lawyer
- Pause questioning until you have had that opportunity
These obligations come up every day in British Columbia, whether someone is stopped on the roadside, detained during an investigation, or formally arrested. But the Charter does not automatically require police to stop questioning forever once you have spoken to a lawyer. That is where R. v. Sinclair becomes so important.
Background of R. v. Sinclair
R. v. Sinclair was decided by the Supreme Court of Canada in 2010. The accused was detained, advised of his right to counsel, and spoke with a lawyer. Police then questioned him for several hours. During that questioning, he repeatedly asked to speak with his lawyer again, and police refused.
The case raised a central question: does the right to counsel include a right to ongoing access to a lawyer throughout police questioning?
What the Supreme Court Decided
The Supreme Court ruled that the right to counsel does not usually include the right to have a lawyer present during questioning or to consult a lawyer again whenever you ask. Once police have provided a reasonable opportunity to speak with counsel and the detainee has received legal advice, police can continue questioning.
The Court’s reasoning was that the purpose of the right to counsel is to help a detainee understand their situation and make informed decisions, including the decision to remain silent. It is not meant to provide continuous coaching during an interrogation.
At the same time, the Court confirmed that there are specific situations where additional access to counsel may be required.
When Additional Access to Counsel Is Required
Under R. v. Sinclair, police must provide renewed access to a lawyer if there is a meaningful change in circumstances that affects the detainee’s legal jeopardy. Examples include:
- You are faced with a new or more serious charge
- Police introduce a new investigative technique that significantly changes the situation
- You show a clear misunderstanding of your legal rights
If one of these situations applies and police refuse access to counsel, it may breach the Charter and can lead to statements being excluded at trial.
Implications for Police Questioning in British Columbia
For people detained in British Columbia, R. v. Sinclair clarifies that police may continue asking questions after you have spoken with a lawyer, even if you ask to speak with them again, as long as there has been no change in circumstances.
That does not mean you are required to answer. You always have the right to remain silent. Speaking with a lawyer early is meant to help you understand that right and use it effectively, especially when questioning continues and the pressure increases.
From a defence perspective, the decision also reinforces how important that first legal consultation is. What you understand, say, or choose not to say in those early hours can shape the rest of the case.
Why R. v. Sinclair Matters for Criminal Defence
This case continues to influence how courts in British Columbia assess whether statements made to police can be used as evidence. Defence counsel often review:
- Whether police provided a meaningful opportunity to consult counsel
- Whether the detainee understood their rights
- Whether police should have allowed renewed access to counsel due to changed circumstances
If police failed to meet their obligations, a Charter challenge may be available, and the prosecution’s evidence can be significantly weakened.
Protecting Your Rights During Detention
If you are detained or arrested, clearly assert your right to speak with a lawyer and follow the advice you receive. Even if police continue questioning, you are not required to answer.
An experienced criminal defence lawyer can also review what happened during detention to determine whether your Charter rights were respected and what steps should be taken next.
Speak with a Criminal Defence Lawyer
The lessons from R. v. Sinclair show that the right to counsel can be more complicated than people expect. If you are under investigation or facing charges in British Columbia, getting legal advice as early as possible can make a meaningful difference.
To discuss your situation and protect your rights, contact Michael Shapray, an experienced criminal defence lawyer who understands how Charter rights are applied in practice. Early guidance can make a meaningful difference in the outcome of your case.