Vancouver criminal defence lawyer Michael Tammen says he is disappointed with a Supreme Court of Canada ruling on the right of suspects to access counsel while under police questioning.

In a majority decision released today (October 8), the country’s top court concluded that a person does not have a constitutional right to have a lawyer present during an interview related to a criminal investigation.

The Supreme Court justices were divided 5-4 on the decision to dismiss an appeal in the B.C. case of R. v. Sinclair, one of three related appeals the court considered.

Trent Terrence Sinclair was arrested and eventually convicted of manslaughter in the 2002 death of Gary Grice. Following his arrest and prior to questioning by police, Sinclair spoke with a lawyer, but he was later denied access to counsel and implicated himself in the crime.

Tammen, who had yet to review the judgment in detail, explained that the Supreme Court position does little to change the way the law is interpreted in the country, but said he nevertheless would have preferred a different outcome.

He expressed concern about a “gross power imbalance” that can arise when a person is subjected to police questioning.

“The police do have very sophisticated interrogation methods designed to deliberately break down—and I don’t say that in a pejorative sense—the person’s insistence on standing on the right to silence,” he told the Straight today by phone.

In the reasons for judgment, Chief Justice Beverly McLachlin and Justice Louise Charron write that, in following through on their duty to investigate alleged crimes, police “have to make inquiries from relevant sources of information, including persons suspected of, or even charged with, committing the alleged crime.

“While the police must be respectful of an individual’s Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone,” they write.

Dissenting Justices Louis LeBel and Morris Fish said Sinclair’s “right to counsel was infringed because the police prevented him from obtaining the legal advice to which he was entitled.

“His access to legal advice would have mitigated the impact of the police’s relentless and skilful efforts to obtain a confession from him,” they added.