"Miranda Rights" not imported to Canada - how does this affect people accused of a crime?

[Cat Whisperer]

Calgary Herald story -

A deeply divided Supreme Court of Canada refused Friday to import U.S. "Miranda rights" to Canada, ruling that it would frustrate criminal investigations and slow down the justice system to impose a constitutional guarantee for suspects to have lawyers present during police interrogations.

The news story seems simplistic to me - would anyone like to enlighten me on how this will (and currently does) affect people accused of crimes in Canada?

[Captain Amazing]

In the US, the police are supposed to stop questioning someone if he invokes his right to remain silent or requests an attorney, and if they question someone who's requested an attorney without his attorney present, the things he says in response to such questioning can be thrown out as evidence.

The Canadian Supreme Court just ruled on a case where, as they described the facts:

After being arrested for murder, S was advised of his right to counsel, and twice spoke by telephone with a lawyer of his choice. He was later interviewed by a police officer for several hours. S stated on a number of occasions during the interview that he had nothing to say on matters touching the investigation and wished to speak to his lawyer again. The officer confirmed that S had the right to choose whether to talk or not, however, he refused to allow S to consult with his lawyer again. He also told S that he did not have the right to have his lawyer present during questioning. The officer continued the conversation. In time, S implicated himself in the murder. At the end of the interview, the police placed S into a cell with an undercover officer. While in the cell, S made further incriminating statements to that officer. S later accompanied the police to the location where the victim had been killed and participated in a re‑enactment.

[Spoons]

Originally Posted by Cat Whisperer

... would anyone like to enlighten me on how this will (and currently does) affect people accused of crimes in Canada?

Addressing the "currently does" question in general terms; what typically happens is that police can question an accused without a lawyer being present. Even after the accused has consulted a lawyer by telephone, the police can continue to question the accused. From what I can tell from the news story, this state of affairs was challenged on Charter grounds, but the Court's decision means that things won't change.

I should point out that the rights Canadians have do come close to the American "Miranda rights" as they are commonly understood. If you are arrested, you have your Charter rights to remain silent (i.e. no self-incrimination), and to consult with a lawyer; and you also have your habeas corpus rights as well. What you do not have, that Americans do, is the right to have a lawyer present during police questioning (which this decision addresses), and the right to a public defender. We don't have public defenders in Canada, though various plans exist to provide some form of legal counsel to those who cannot afford a lawyer.

My remarks are very general, but I'd like to see commentary from someone more knowledgeable in such matters ... paging Northern Piper.

[Cat Whisperer]

But how does that actually affect people charged with crimes? Are Canadian police in the habit of breaking suspects with illegal or questionable questioning processes? Does having a lawyer present create a better situation for suspects in the US?

[Spoons]

Originally Posted by Cat Whisperer

But how does that actually affect people charged with crimes? Are Canadian police in the habit of breaking suspects with illegal or questionable questioning processes? Does having a lawyer present create a better situation for suspects in the US?

To answer your first question; it affects them in the sense that police in Canada can continue to question suspects even after the suspects have spoken with a lawyer. In my personal experience as a lawyer, it amounts to telling a client to shut up and say nothing to police until I have had a chance to speak with my client. Even after I have, my advice would still be to shut up, no matter what the police do or promise.

To answer your second question; yes, they are. Long periods of police interrogation, with reasonable breaks for washroom use or food, can be typical.

Your third question deals with a situation we do not currently have in Canada. But I would say that having a lawyer present during questioning better protects the suspect's rights. Even being able to tell my client, "You don't have to answer that" and being able to cite the Charter as to why, in response to an inappropriate police question, helps to ensure that all the suspect's rights are protected. Sadly, I'd fear that the police would take advantage of the ignorance of an unrepresented accused, and use the opportunity to ask inappropriate questions in an effort to get the accused to inadvertently waive his or her Charter rights.

[Cat Whisperer]

Thanks for the answers - I'm not sure why our Chief Justices are fighting to not allow the accused to have their lawyers present. It doesn't really seem sporting.

[Spoons]

Originally Posted by Cat Whisperer

Thanks for the answers - I'm not sure why our Chief Justices are fighting to not allow the accused to have their lawyers present. It doesn't really seem sporting.

I don't think the issue the Court addressed was anything to do with preventing the accused from having a lawyer present. Rather, I'm sure the the issue was framed as, "Does the Constitution as it stands allow an accused to have a lawyer present during questioning?" And the answer that the Court determined was, No.

Remember, this was a split decision, and there were some dissents. I'm sure most, of not all, of the Supreme Court justices would agree that having a lawyer present better protects the accused's rights. But with the question framed as I've suggested, the only way we're going to see the right to have a lawyer present during questioning is if the Constitution is amended. And that is not an easy process.

I'll be in a better position to comment more knowledgeably once I've read the published decision, which I haven't yet. I'll try to get around to it when I can.

[BigT]

Originally Posted by Spoons

Rather, I'm sure the the issue was framed as, "Does the Constitution as it stands allow an accused to have a lawyer present during questioning?" And the answer that the Court determined was, No.

(bolding mine)

So it's not even that police don't have to let the accused have a lawyer with them, but that the police actually can't?

[Spoons]

Originally Posted by BigT

(bolding mine)

So it's not even that police don't have to let the accused have a lawyer with them, but that the police actually can't?

No, and sorry for any misunderstanding. I think that as things currently stand, a lawyer could be present during questioning, and the police would have to allow it. But the accused in Canada does not have a constitutional right to have a lawyer present during questioning, as Americans have.

A couple of bothersome challenges present themselves under the current system:

-- As soon as the accused was off the phone to the lawyer, and the lawyer was on his or her way, the police could still get in a few minutes of questioning without the lawyer. Again, best advice to the accused is to shut up.

-- Police interrogations have been documented as lasting for hours. I remember in my Criminal Procedure class, we saw a few extreme examples taken from CCTV tapes of interrogations lasting up to 12 hours; with, as you might guess, no lawyer present. So even if the lawyer says, "shut up," there is nothing to safeguard the accused's rights on the spot if the lawyer doesn't show up for hours and the accused (in an effort to just make it stop) does not shut up.

Having done a bit of criminal defense work myself (though in the interests of full disclosure, I do not currently practice criminal law), I feel an obligation to a client to make sure that the client's rights are safeguarded and that the police do not overstep their bounds. However, I do not know how I would respond to being awakened at 3:00 a.m. by a request to attend immediately at a police station where a client was being questioned. I suppose that I would tell my client to shut up, then do my best to get there for my client; but it would be nice if, like the United States, we had a precedent in place where my client in that situation could tell the police, "My lawyer says you cannot talk to me until he is here with me," and the police would have to back off until I could get there at a more reasonable hour.