denying the antecedent: the supreme court of canada fails first-year logic

denying the antecedent

13/08/2012.

Case Background

            The case at hand is about interpreting what existing case law states about when the Charter right to counsel under section 10(b) should or should not be granted, and specifically what constitutes sufficient counsel. 

            While Sinclair was being questioned as a suspect in the death of a friend, he stated repeatedly that he wished to obtain counsel further to the six minutes of counsel he had previously received at the point of detention, pursuant to his s. 10(b) right. The questioning police officer told him several times that while Sinclair had the right to remain silent he did not have the right to seek further counsel, denied him of that further counsel and continued to persuade him to answer the questions. Eventually, Sinclair admitted to killing his friend in perceived self-defence, first during questioning and then later to an undercover police officer in the holding cell, and even brought the police to the scene of the crime to engage in a re-enactment of it.[1]

            The trial judge admitted all of this evidence on the common law grounds that it was obtained by Sinclair through voluntary admission, sentencing him to manslaughter.[2] The case was appealed under the argument that Sinclair's s. 10(b) right to counsel was not respected.[3] The court of appeal rejected all of the various arguments presented, upheld the initial ruling that no charter breach had occurred and dismissed the appeal.[4] The case was again appealed. The Supreme Court again ruled that this final appeal should be dismissed due to the absence of a charter breach[5], coming to two distinct conclusions regarding detainee rights under section 10 (b). First, a detainee's right to obtain counsel under s. 10(b) does not extend to the right to have counsel present during a police interrogation. Second, a detainee only has the right to have additional contact with counsel after there has been a change of circumstances that include (but are not limited to) three specific types of changes[6]: new procedures involving the detainee, a change in jeopardy and a reason to question the detainee’s understanding of his (her) section 10(b) right.

Jurisprudential History

            While the case in question is based on multiple existing precedents, it is also a novel ruling in the sense that it attempts to combine multiple existing precedents into a singular test for section 10(b) rights. Understanding the history of the ruling consequently means understanding the various components of the new test rather than any previously existing rulings. It should also be noted right away that the majority applies an objective logical fallacy at the root of its reasoning and that the legal history of the ideas underlying case is consequently of questionable relevance in the court's final decision.

            The Majority cites R v. Evans [1991] in stating that the police only have a duty to allow further counsel when circumstances change.[7] Taking a closer look at that case, which is one where a conviction was overturned due to infringement of s. 10(b) rights, reveals a rather different situation: [8]

The jurisprudence establishes that the duty on the police to inform a detained person of his or her right to counsel encompasses three subsidiary duties: (1) the duty to inform the detainee of his right to counsel; (2) the duty to give the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay; and (3) the duty to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel: R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Ross, [1989] 1 S.C.R.  3; R. v. Black, supra. In Black, the rider was added that the accused must be reasonably diligent in attempting to obtain    counsel if he wishes to do so, otherwise the correlative duty on the police to refrain from questioning him is suspended.

From R. v. Manninen [1987], where conviction was also overturned:[9]

In my view, s. 10(b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so. This aspect of the right to counsel was recognized in Canadian law well before the advent of the Charter. In Brownridge v. The Queen, [1972] S.C.R. 926, a case decided under the Canadian Bill of Rights, Laskin J., as he then was, wrote at pp. 952‑53:

The right to retain and instruct counsel without delay can only have meaning to an arrested or detained person if it is taken as raising a correlative obligation upon the police authorities to facilitate contact with counsel. This means allowing him upon his request to use the telephone for that purpose if one is available.

Also from R. v. Manninen: [10]

Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. In this case, the police officers correctly informed the respondent of his right to remain silent and the main function of counsel would be to confirm the existence of that right and then to advise him as to how to exercise it

….as well as….[11]

            The Ontario Court of Appeal came to the same conclusion in Anderson, supra, and in R. v. Esposito (1985), 24 C.C.C. (3d) 88, at p. 97:

                                If the suspect states that he wishes to retain counsel all questioning must cease until he has been afforded the opportunity of consulting counsel....

R. v. Black [1989] is further cited in R. v. Evans: [12]

This Court's judgment in R. v. Black, supra, per Wilson J., makes it clear that there is a duty on the police to advise the accused of his or her right to counsel a second time when new circumstances arise indicating that the accused is a suspect for a different, more serious crime than was the case at the time of the first warning.

Directly from R. v. Black[13]:

The accused did not exhaust her rights to counsel when she briefly spoke with her lawyer in relation to the initial charge. The rights accruing to a person under s. 10(b) of the Charter arise because that person has been arrested or detained for a particular reason.  An individual, therefore, can only exercise his s. 10(b) rights in a meaningful way if he knows the extent of his jeopardy. When the accused contacted her lawyer, she was under arrest for attempted murder. This is significantly different from a charge of first degree murder. Given the difference in the charges, to conclude that the advice from her counsel would inevitably have been the same is sheer conjecture.  It is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed.

The following caveat also appears at the end of R. v. Evans:[14]

We do not, of course, lay down rules that determine facts and I am not persuaded that this is a case in which we should attempt to formulate rules that will indelibly characterize some changes in the purpose of an investigation as imposing specific new duties, the breach of which are Charter violations.

            A further substantive issue was discussed, namely the purpose of section 10(b) within the Charter. The court cites itself[15] in R. v. Hebert [1990]:[16]

The guarantee of the right to consult counsel confirms that the essence of the right is the accused’s freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed it is open to the state to use legitimate means of persuasion to encourage the suspect to do so. The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities. To assist in that choice, the suspect is given the right to counsel.

           

            The decision upheld three specific situations that the court considered to be valid in determining whether or not the circumstances of the case had changed or not, while allowing for further examples in the future. While these three specific situations are really examples rather than categories, and it may not be necessary to explicitly explore them in future decisions citing this one as precedent, they are cited within the decision and will be noted here.  First is the question of whether or not there is a "new procedure". This is meant to allow the detainee to consult counsel before the police use a method of analysis or interrogation that may not have been predicted by counsel and may require further consultation, such as a lie detector test or a line-up.[17] The case where this was upheld as a reason for further counsel was R. v. Ross [1989]. The second example of an accepted change leading to the right to seek further counsel is a change in jeopardy relating to a modification of the charges[18], as was the case in R. v. Evans and R. v. Black. This is considered to be consistent with the Charter rights under s. 10(b) because a change of charges is in effect a new condition for detainment and retriggers both s. 10(a) and s. 10(b). The third example provided is the situation where there are reasons to believe that the detainee does not fully understand their rights under s. 10(b), either as a result of having waived them or as a result of a police officer's perception of the detainee's understanding.[19] The cases cited are R. v. Prosper [1994] and R. v. Burlingham [1995].

            A secondary issue in the case was whether a detainee's right to obtain counsel under s. 10(b) should extend to the right to have counsel present during a police interrogation. While an existing body of law exists on the topic at a provincial level, this is an issue that had not previously been contemplated by the Supreme Court of Canada; it follows that no relevant case law exists at the Supreme Court level. In this case, that doesn't matter as upholding such a right would be inconsistent with the majority's decision regarding rights to seek further counsel.

Analysis

            While the cases that the court has brought to attention may convincingly uphold the claim that a change in circumstances necessitates a further right to counsel, nowhere do they exclude other reasons or suggest any basis for the following claim by the majority[20]:

The surrounding text of s. 10 does not greatly assist in resolving the debate on whether s. 10(b) confers initial or continuing rights. Section 10(a) provides the right on arrest or detention “to be informed promptly of the reasons therefor”. This clearly confers a duty to give the detainee information at a discrete point in time; there is no requirement that the police convey this information more than once, unless the reasons themselves change: R. v. Evans, [1991] 1 S.C.R. 869.

In fact, the cited caveat in R. v. Evans seems to be a request that the case not be used in further jurisprudence due to its unusual nature.

            The argument presented by the majority is as follows:
           

            If there is a change in circumstance, there is a right to counsel. (R v. Evans)

                There is no change in circumstance in R. v. Sinclair.
                Therefore, there is no right to counsel in R. v. Sinclair.

This argument is an example of a logical fallacy called denying the antecedent.[21]

            Now, it may very well be true that some other precedent exists for the claim that a lack of change in circumstance implies no further right to counsel. However, as it exists in R. v. Sinclair, this claim is presented only by means of logical fallacy. Furthermore, in its discussion of the various other reasons for a second counsel that are presented by the dissenting judges, the majority merely authoritatively upholds the fallacy without any argument at all:

It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his or her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct.

While respect for the Chief Justice should be upheld, logic is also authoritarian in nature; as any deduction by means of logical fallacy is invalid by definition, it follows that the court's reasoning on this point is objectively wrong, no matter how often or how strenuously it is stated. The dictatorial approach the majority takes in this case, accompanied by an almost total lack of valid argumentation, is disappointing, to say the least, and primarily because it does not allow for argumentative dissent.  Little else can be said of the ruling.   

            However, there is currently no body of logicians regulating decisions made by the Supreme Court of Canada and its reasoning, however faulty, consequently stands. Yet, it cannot be reasonably traced to or deduced from existing case law and consequently must be viewed as a novel decision made by an activist court acting outside of the boundaries of existing case law.

            Whatever one may think of it, applying this test to the facts in the case does deny the appeal. First, at no point in the interrogation did the police apply or attempt to apply a novel procedure. Second, there was no change in the charges during the period of detention. Demonstrating the third type of change in circumstances would require demonstrating that Sinclair at some point did not fully understand his rights; by quoting some of his various statements directly, as well as the views of those involved at various stages in the case, it was shown that this is not upheld. It was posited, correctly or incorrectly, that there were no further changes in the case. Yet, it needs to be stressed that these are examples rather than categories and that demonstrating each point was really not necessary.[22]

            It is useful at this point to interject the fact that the thesis that it can be comprehensively shown that all types of change were not present is unsustainable. Should this approach be followed, the inevitable result is an ever increasing list of examples to check against. Rather, the burden should lay with the defendant to appeal on grounds of a specific change in circumstances and the court to grant or deny the appeal.

            The court addressed two further concerns outside of the fallaciously applied precedent. One was the question of whether a detainee's right to obtain counsel under s. 10(b) should extend to the right to have counsel present during a police interrogation. It is not necessary to cite any case law to deduce that this right must be denied as a result of the previous "deduction", as flawed as it might be. This can be shown formally through a reductio ad absurdum. Suppose that the right to ever-present counsel exists. Then there would necessarily be a right to consult counsel without there being a change in the circumstances of the case. Yet, this contradicts the previous result.

            Putting the majority's logically catastrophic ruling aside, the question of what it is that existing case law actually says in the matter remains an open one. The existing precedent prior to this case does not uphold the view that the sole reason for further counsel is due to a change in circumstances, it merely provides it as one possible reason to allow further counsel. In fact, the very case law that the majority cited firmly upholds the right to counsel and the duty of the police to refrain from questioning until then. R v. Evans, amongst others, is quite clear:[23]

(2) the duty to give the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay; and (3) the duty to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel

Is two brief three minute encounters and an answering machine meaningful counsel? Is it reasonable to deny "further" counsel? At least one judge did not think so.[24] If the purpose of the section 10(b) right is to "allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights."[25], then it seems clear that the more valid question in this case is whether that right has been satisfied in the first place, not whether the circumstances have changed to allow "further" counsel. Now, who makes the decision? It seems unreasonable to think anybody other than the detainee should make decisions about whether s/he requires further counsel or not!
           

            Dissenting for only himself, Justice Binnie produces the most reasonable position in stating that further counsel should be reasonably allowed on request as a result of evolving circumstances.[26] This approach would allow the detainee to retain almost full autonomy in choosing when to seek counsel, in accordance with the presumption of innocence.

            In rejecting the right of ever-present counsel as too extreme and beneficial only to the wealthy, Justice Binnnie produces words of wisdom regarding the application of a standard of reasonableness[27]:

There exists an intermediate position that would allow the detainee reasonable access to legal advice from time to time in the course of a police interrogation (which in this case, as stated, lasted about five hours) without defence counsel being actually present in the interrogation room. The Crown argues that any such approach would create difficult issues of line drawing for police interrogators: When should further consultation be allowed? When can it be delayed? How frequently is “reasonable”? The fact is, however, that unless the detainee is to have a constitutional right unilaterally to stop police questioning at any time merely by indicating a wish to speak to counsel (again) — a position which in my view tilts the balance too far against the community interest in law enforcement — it is inevitable that the police are going to have to make the reasonableness judgment in the first instance. I do not see this as deeply problematic. Police deal with “reasonableness” issues all the time. It is one of the organizing principles that govern their professional work. Various factors can provide guidance, as will be discussed. What is not acceptable, in my view, is to read down the s. 10(b) right for the purpose of making it easier for the police to administer it.

Justice Binnie also provides some examples of what he considers to be reasonable circumstances[28], but they need not be analyzed here. It is enough to cite the standard of what a reasonable person would consider should allow a request for further counsel. The majority's characteristically authoritarian response ejected this suggestion as 'vague',[29] while failing to understand that its vagueness is what makes its consistent with a liberal application of the Charter. Unfortunately, by falling for the distraction, Justice Binnie does not help his own case as well as he could have. He does, however, convincingly explain that 'reasonableness' is a widely applied standard in law and that applying it here is far from absurd.[30]

            Some commentators have suggested that the decision arrived at in the case restricts the right to the presumption of innocence.[31]It is unclear how that may be the case. Nor can the Charter be reasonably interpreted to uphold a general right against self-incrimination outside of the court room; suggestions that it might are rather preposterous.[32]

Conclusion

            It is somewhat disconcerting to note that such an important decision is based on such faulty reasoning. Due to this faulty reasoning, it's hard to imagine that the test will stand long. While it stands, it represents an unfortunately conservative interpretation of the Charter that seems slanted towards the increasing police state. Specifically, the decision seems to be interested in restricting rights rather than increasing them, a disappointing attitude that is fundamentally incompatible with liberty. Given that rights to counsel are hardly a populist issue designed to quell dissent and are, if anything, a protection against the very tyranny of populism itself, it is unclear why the section would have been erected should it not have been meant to apply in its most liberal interpretation. By taking a rights-restricting approach, the majority seems to have fully missed the point. It seems very doubtful that Trudeau, Chretien and the rest of them should have wished to see this right to counsel restricted to a meaningless linguistic game amongst judges while real people see their rights restricted. The draconian requirement of a "change in circumstances" is simply too narrow to uphold the purpose of s. 10(b) effectively.

            While Justice Binnie is most correct, he errs in his deduction that a new trial should follow. Regardless of whether Sinclair's right to counsel was respected, it is quite clear that Sinclair is guilty of manslaughter, and beyond any reasonable doubt. So, allowing this evidence does not bring the administration of justice in disrepute. To the contrary: it is ordering a retrial that would.

            The concern here to justice is consequently not with the outcome of this specific case, which is reasonable, but of the draconian and fallaciously constructed precedent it sets for further cases.

Bibliography

LEGISLATION

Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being

            Schedule B to the Canada Act 1982 (UK), 1982, c 11.

            <http://laws-lois.justice.gc.ca/eng/charter/page-1.html>

JURISPRUDENCE

R. v. Black, 1989 2 SCR 138, online: Judgments of The Supreme Court of Canada,

            < http://scc.lexum.org/en/1989/1989scr2-138/1989scr2-138.html>

R. v. Burlingham, 1995 2 SCR 206, online: Judgments of The Supreme Court of Canada,

            < http://scc.lexum.org/en/1995/1995scr2-206/1995scr2-206.html>

R. v. Evans, 1991 1 SCR 869, online: Judgments of The Supreme Court of Canada,

            < http://scc.lexum.org/en/1991/1991scr1-869/1991scr1-869.html>

R. v. Hebert, 1990 2 SCR 151, online: Judgments of The Supreme Court of Canada,

            < http://scc.lexum.org/en/1990/1990scr2-151/1990scr2-151.html>

R. v. Manninen, 1987 1 SCR 1233, online: Judgments of The Supreme Court of Canada,

            < http://scc.lexum.org/en/1987/1987scr1-1233/1987scr1-1233.html>

R. v. Prosper, 1994 3 SCR 236, online: Judgments of The Supreme Court of Canada,

            < http://scc.lexum.org/en/1994/1994scr3-236/1994scr3-236.html>

R. v. Ross, 1989 1 SCR 3, online: Judgments of The Supreme Court of Canada,

            < http://scc.lexum.org/en/1989/1989scr1-3/1989scr1-3.html>

R. v. Sinclair, 2008 BCCA 127, online: The Courts of British Columbia,     <http://www.courts.gov.bc.ca/Jdb-txt/CA/08/01/2008BCCA0127.htm>

R. v. Sinclair, 2010 SCC 35, online: Judgments of The Supreme Court of Canada,

            < http://scc.lexum.org/en/2010/2010scc35/2010scc35.html>

SECONDARY MATERIALS: WEBSITES

Denying the Antecedent, online: Wikipedia <http://en.wikipedia.org/wiki/Denying_the_antecedent>

Legal Citation, online: Queen's University Library,   <http://library.queensu.ca/law/lederman/legalcitation>

Part 1: Case Comment Format, online: Washington University School of Law,
            <http://law.wustl.edu/publications/pages.aspx?id=840>

Your Quick Guide to Citing Legal Sources based on Canadian Guide to Uniform Legal Citation McGill    Law Journal, 7th Edition (2010), Durham College School of Justice and Emergency Services,

            <http://www.durhamcollege.ca/wp-content/uploads/Legal-Citation-for-Legal-        Administration.pdf>

Note: the McGill handbook suggested citing online cases in the following manner:

Halifax County Municipal Mental Hospital (Board of Management) v Canadian Union of Public Employees (5 March 1971), 71-006, online: NSLST <http://www.gov.ns.ca/lwd/lst/>.

This is quite obtuse and rather nonsensical. It would require the reader to go to the root of the domain and then search for a docket number (in this case, 71-006). Such a search engine might not even exist! Why not just cite the full hyperlink, as I've done? The only rational reason underlying such an obtuse standard is to act as a means of dissuading the internet standard. This is disappointing; this kind of regressive Luddism is currently a powerful force of thought within academia but needs to be resisted with increasing aggression lest abstract thought become a casualty of technology (surely, the academics do not think they can defeat technology?) and the McGill standard consequently ought to be rejected in favour of something more palatable.

As it turns out, the McGill text provides a perfectly reasonable replacement in its general treatment of online sources, which I've adapted for case law. I would suggest that this be standardized.

---

[1] R. v. Sinclair, 2008 BCCA 127, para 6-25 (available on LexUM)

[2] R. v. Sinclair, 2008 BCCA 127, para 27-32 (available on LexUM)

[3] R. v. Sinclair, 2008 BCCA 127, para 4 (available on LexUM)

[4] R. v. Sinclair, 2008 BCCA 127, para 70 (available on LexUM)

[5] R. v. Sinclair, 2010 SCC 35, para 3 (available on LexUM)

[6] R. v. Sinclair, 2010 SCC 35, para 2 (available on LexUM)

[7] R. v. Sinclair, 2010 SCC 35, para 22 (available on LexUM)

[8] R. v. Evans, 1991 1 SCR 869 (available on LexUM)

[9] R. v. Manninen, 1987 1 SCR 1233, para 21 (available on LexUM)

[10] R. v. Manninen, 1987 1 SCR 1233, para 23 (available on LexUM)

[11] R. v. Manninen, 1987 1 SCR 1233, para 23 (available on LexUM)

[12] R. v. Evans, 1991 1 SCR 869 (available on LexUM)

[13] R. v. Black, 1989 2 SCR 138, para (available on LexUM)

[14] R. v. Evans, 1991 1 SCR 869 (available on LexUM)

[15] R. v. Sinclair, 2010 SCC 35, para 25 (available on LexUM)

[16] R. v. Hebert, 1990 2 SCR 151 (available on LexUM)

[17] R. v. Sinclair, 2010 SCC 35, para 50 (available on LexUM)

[18] R. v. Sinclair, 2010 SCC 35, para 51 (available on LexUM)

[19] R. v. Sinclair, 2010 SCC 35, para 52 (available on LexUM)

[20] R. v. Sinclair, 2010 SCC 35, para 22 (available on LexUM)

[21] Denying the Antecedent, online: Wikipedia, <http://en.wikipedia.org/wiki/Denying_the_antecedent>

[22] R. v. Sinclair, 2010 SCC 35, para 66-75 (available on LexUM)

[23] R. v. Evans, 1991 1 SCR 869 (available on LexUM)

[24] R. v. Sinclair, 2010 SCC 35, para 83 (available on LexUM)

[25] R. v. Manninen, 1987 1 SCR 1233, para 23 (available on LexUM)

[26] R. v. Sinclair, 2010 SCC 35, para 80 (available on LexUM)

[27] R. v. Sinclair, 2010 SCC 35, para 105 (available on LexUM)

[28] R. v. Sinclair, 2010 SCC 35, para 106 (available on LexUM)

[29] R. v. Sinclair, 2010 SCC 35, para 59 (available on LexUM)

[30] R. v. Sinclair, 2010 SCC 35, para 108 (available on LexUM)

[31] R. v. Sinclair, 2010 SCC 35, para 125 (available on LexUM)

[32] R. v. Sinclair, 2010 SCC 35, para 63 (available on LexUM)

http://dghjdfsghkrdghdgja.appspot.com/thoughts/essays/denyingthe.html