CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, January 15, 2013

MacDonnell on the Pretrial Right to Counsel in Canada

Vanessa MacDonnell (University of Ottawa - Faculty of Law (Common Law)) has posted R v. Sinclair: Balancing Individual Rights and Societal Interests outside of Section 1 of the Charter (Queen's Law Journal, Vol. 38, No. 1, 2012, pp. 137-64) on SSRN. Here is the abstract:

The majority judgment in R v Sinclair reflects what the author sees as a problematic trend in the Supreme Court of Canada’s pre-trial legal rights jurisprudence under the Canadian Charter of Rights and Freedoms. In Sinclair, the Court took the novel step of holding that society’s interest in “the investigation and solving of crimes” should be taken into account in determining the scope of the right to counsel under section 10(b). The author explains that such interests are usually left to the justification stage under section 1 of the Charter, but that section 1 is functionally unavailable in the context of many pre-trial legal rights claims. This is because in cases of alleged police misconduct, the state action in question is not authorized either by statute or by common law, so the section 1 requirement that the limits on rights be prescribed by law cannot be met. For this reason, the author argues, courts have sought other ways to incorporate interest balancing into Charter analysis. In some cases they have done so under the “fundamental justice” proviso to section 7, and in others by expanding police authority under the “ancillary powers doctrine”.

The author situates the Sinclair decision within the overall jurisprudence on section 10(b), and argues that the Court wrongly imposes an internal limit on section 10(b) in a manner that avoids the rigorous constraints that the Oakes test imposes on the section 1 analysis. The author’s overall conclusion is that Sinclair reflects a judicial encroachment on the role of the legislature and a weakening of the role of the courts as defenders of fundamental rights.

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