No right to lawyer during interrogation in Canada
October 8, 2010 12:01 PM Subscribe
Canadians do not have the right to a lawyer when being interrogated by the police.
The Charter of Rights and Freedoms guarantees the right to counsel, but the Supreme Court has ruled (in a 5-4 decision) that the right does not apply to police interrogations. This right is explicitly guaranteed in the US, so the decision comes as a surprise to those of us who grew up watching American cop shows.
The rulings are available here.
The Charter of Rights and Freedoms guarantees the right to counsel, but the Supreme Court has ruled (in a 5-4 decision) that the right does not apply to police interrogations. This right is explicitly guaranteed in the US, so the decision comes as a surprise to those of us who grew up watching American cop shows.
The rulings are available here.
Well, I'd say you have the right to a lawyer, but your government is choosing not to respect that right.
posted by Galaxor Nebulon at 12:08 PM on October 8, 2010 [5 favorites]
posted by Galaxor Nebulon at 12:08 PM on October 8, 2010 [5 favorites]
I'm half-Canadian. Can I at least get a hack, or a kid right of out law school?
posted by timsteil at 12:11 PM on October 8, 2010 [1 favorite]
posted by timsteil at 12:11 PM on October 8, 2010 [1 favorite]
In that case, what, you're interrogated for as long as the police feel like it?
posted by 2bucksplus at 12:13 PM on October 8, 2010
posted by 2bucksplus at 12:13 PM on October 8, 2010
So...Canadians should only commit crimes in the US?
posted by nomadicink at 12:13 PM on October 8, 2010
posted by nomadicink at 12:13 PM on October 8, 2010
In that case, what, you're interrogated for as long as the police feel like it?
The article doesn't make clear what obligations the police have to end an interview, but it does say that you still have an absolute right to remain silent, which the majority justices took to mean that the suspect has absolute control over the interrogation.
posted by fatbird at 12:14 PM on October 8, 2010
The article doesn't make clear what obligations the police have to end an interview, but it does say that you still have an absolute right to remain silent, which the majority justices took to mean that the suspect has absolute control over the interrogation.
posted by fatbird at 12:14 PM on October 8, 2010
"No, no, no - you didn't hear me right. I said you have a ride to a lawyer. We'll drive to you some lawyer's officer or something. We'll be asking you some pretty harsh questions the whole time, and you don't have to say anything, but you'll probably get pissed off and say something incriminating. Then you can talk to a lawyer, after the ride."
posted by filthy light thief at 12:16 PM on October 8, 2010 [9 favorites]
posted by filthy light thief at 12:16 PM on October 8, 2010 [9 favorites]
In that case, what, you're interrogated for as long as the police feel like it?
Well, the cops are Canadian. If you raise your voice they'll get really uncomfortable, and probably apologize and then let you talk to a lawyer in order to avoid conflict.
posted by Mayor Curley at 12:16 PM on October 8, 2010 [18 favorites]
Well, the cops are Canadian. If you raise your voice they'll get really uncomfortable, and probably apologize and then let you talk to a lawyer in order to avoid conflict.
posted by Mayor Curley at 12:16 PM on October 8, 2010 [18 favorites]
How does that even make sense? They can't interrogate you until you're arrested, and immediately upon arrest, you have the right to council "without delay." So is it simply that it's a race? The police officer must start interrogating before the arrested citizen has the right to ask for his lawyer?
Question for the Canadians since I don't know this one: do you have a similar right to remain silent? Is it time to just promote "don't talk to cops" until this ruling gets reversed?
posted by explosion at 12:17 PM on October 8, 2010
Question for the Canadians since I don't know this one: do you have a similar right to remain silent? Is it time to just promote "don't talk to cops" until this ruling gets reversed?
posted by explosion at 12:17 PM on October 8, 2010
you still have an absolute right to remain silent, which the majority justices took to mean that the suspect has absolute control over the interrogation.
Which is idiotic, because interrogation techniques are specifically designed to undermine your ability to exercise such a right.
posted by Riki tiki at 12:17 PM on October 8, 2010 [9 favorites]
Which is idiotic, because interrogation techniques are specifically designed to undermine your ability to exercise such a right.
posted by Riki tiki at 12:17 PM on October 8, 2010 [9 favorites]
absolute right to remain silent
Hopefully it's not like that bullshit down here where you have to SAY, "I'm exercising my right to remain silent" in order for them to acknowledge that and not keep interrogating you for 6 hours.
posted by yeloson at 12:17 PM on October 8, 2010
Hopefully it's not like that bullshit down here where you have to SAY, "I'm exercising my right to remain silent" in order for them to acknowledge that and not keep interrogating you for 6 hours.
posted by yeloson at 12:17 PM on October 8, 2010
After briefly reading the court's decision, I'm shocked at just how much discussion there was of American jurisprudence (mostly Miranda, but other decisions as well.) You can see towards the top of the decision a list of all the cases cited, and there are quite a few U.S. Supreme Court decisions.
I can only imagine the uproar if SCOTUS did the same thing down here. As it is, even mentioning other countries in decisions gets the right (and conservative justices like Scalia) really riled up.
posted by thewittyname at 12:17 PM on October 8, 2010
I can only imagine the uproar if SCOTUS did the same thing down here. As it is, even mentioning other countries in decisions gets the right (and conservative justices like Scalia) really riled up.
posted by thewittyname at 12:17 PM on October 8, 2010
I'm half-Canadian. Can I at least get a hack, or a kid right of out law school?
Well, OK. As long as that possible crime is committed with one foot on Canadian soil and the other on the US side, and you are apprehended by law enforcement officials from either side at the same time. Then you can get halfsies.
posted by filthy light thief at 12:18 PM on October 8, 2010
Well, OK. As long as that possible crime is committed with one foot on Canadian soil and the other on the US side, and you are apprehended by law enforcement officials from either side at the same time. Then you can get halfsies.
posted by filthy light thief at 12:18 PM on October 8, 2010
Which is idiotic, because interrogation techniques are specifically designed to undermine your ability to exercise such a right.
That's exactly what the dissenting justices pointed out.
posted by fatbird at 12:19 PM on October 8, 2010
That's exactly what the dissenting justices pointed out.
posted by fatbird at 12:19 PM on October 8, 2010
interrogation techniques are specifically designed to undermine your ability to exercise such a right.
This dramatization of a chapter from "Homicide" comes to mind.
posted by Beardman at 12:21 PM on October 8, 2010 [9 favorites]
This dramatization of a chapter from "Homicide" comes to mind.
posted by Beardman at 12:21 PM on October 8, 2010 [9 favorites]
I can only imagine the uproar if SCOTUS did the same thing down here. As it is, even mentioning other countries in decisions gets the right (and conservative justices like Scalia) really riled up.
Hmm? I thought it was quite common for some justices to consider prevailing legal theory in other countries. I had heard that Stevens, especially, was sensitive to foreign laws and supreme court-equivalent decisions.
posted by muddgirl at 12:22 PM on October 8, 2010
Hmm? I thought it was quite common for some justices to consider prevailing legal theory in other countries. I had heard that Stevens, especially, was sensitive to foreign laws and supreme court-equivalent decisions.
posted by muddgirl at 12:22 PM on October 8, 2010
Well, the cops are Canadian. If you raise your voice they'll get really uncomfortable, and probably apologize and then let you talk to a lawyer in order to avoid conflict.
Just reading this brings back sunny memories of the G20.
posted by Beardman at 12:24 PM on October 8, 2010 [8 favorites]
Just reading this brings back sunny memories of the G20.
posted by Beardman at 12:24 PM on October 8, 2010 [8 favorites]
That's it. I am so sick of this erosion of my fundamental rights. I'm moving to Cana-- What? Oh. Sorry. Forget it.
posted by The Bellman at 12:27 PM on October 8, 2010 [2 favorites]
posted by The Bellman at 12:27 PM on October 8, 2010 [2 favorites]
the decision comes as a surprise to those of us who grew up watching American cop shows
I'm not sure it differs that much from popular fiction. You say you want to wait for your lawyer, but the interview drags on... and the suspect either changes their mind or lets something slip.
Hopefully it's not like that bullshit down here where you have to SAY, "I'm exercising my right to remain silent" in order for them to acknowledge that and not keep interrogating you for 6 hours.
It's a bit worse than that. The dissenting opinion cites Singh for the proposition that police may "prolong the endurance contest despite repeated assertions of the right to silence by the detainee and the frequently expressed desire to return to his cell."
As long as I still have the right to STFU.
Well, that you do. You just have to remember to stick to it.
posted by Durn Bronzefist at 12:35 PM on October 8, 2010
I'm not sure it differs that much from popular fiction. You say you want to wait for your lawyer, but the interview drags on... and the suspect either changes their mind or lets something slip.
Hopefully it's not like that bullshit down here where you have to SAY, "I'm exercising my right to remain silent" in order for them to acknowledge that and not keep interrogating you for 6 hours.
It's a bit worse than that. The dissenting opinion cites Singh for the proposition that police may "prolong the endurance contest despite repeated assertions of the right to silence by the detainee and the frequently expressed desire to return to his cell."
As long as I still have the right to STFU.
Well, that you do. You just have to remember to stick to it.
posted by Durn Bronzefist at 12:35 PM on October 8, 2010
No, you still get to talk to a lawyer before the interrogation (usually by telephone). It's just that you don't have a right to have the lawyer present during the interrogation. Hopefully your lawyer will, during that brief conversation, remind you to keep your damn fool mouth shut during the interrogation, since you still have the right to remain silent.
posted by 256 at 12:35 PM on October 8, 2010
posted by 256 at 12:35 PM on October 8, 2010
Beardman: This dramatization of a chapter from "Homicide" comes to mind.
That was a great show, thanks for the reminder.
Obligatory "Don't ever talk to the police with out a lawyer" video that will really not apply in Canada now.
posted by cftarnas at 12:37 PM on October 8, 2010 [2 favorites]
That was a great show, thanks for the reminder.
Obligatory "Don't ever talk to the police with out a lawyer" video that will really not apply in Canada now.
posted by cftarnas at 12:37 PM on October 8, 2010 [2 favorites]
Canada, What the fuck?!?
Et tu, eh?
For shame, for shame....
posted by Skygazer at 12:38 PM on October 8, 2010
Et tu, eh?
For shame, for shame....
posted by Skygazer at 12:38 PM on October 8, 2010
The real problem here is that the revelation of information not constituting a "change of jeopardy" (ie: we're investigating you for one crime, and half-way through learn you may be guilty of a more serious crime, and switch the focus of the interview) may necessitate counsel being present to advise on the implications of any given statement or revealed piece of evidence. False statements by police make this even more dangerous.
posted by Durn Bronzefist at 12:40 PM on October 8, 2010
posted by Durn Bronzefist at 12:40 PM on October 8, 2010
Regarding the citation of foreign law by the US Supreme Court, here's a paper that considers the history of the practice and how it may be more justified in some cases and less in others. From the abstract:
posted by jedicus at 12:41 PM on October 8, 2010
[T]he Court has relied on such sources to some extent throughout its history. Second, the Court has...cited foreign sources of law with much more frequency in far more important constitutional cases in recent years...and in addition the Court has tended to cite foreign sources of law in some of its most problematic opinions such as Dred Scott, Reynolds, and Roe v. Wade....Third...citation to foreign law is most justifiable when the U.S. Constitution asks the justices to weigh whether a certain practice is reasonable, as it does in the Fourth Amendment, or whether it is unusual, as it does in the Eighth Amendment. [It] is least justifiable when the Court is asked to determine whether an unenumerated right is deeply rooted in American history and tradition, as was the case in Lawrence, or whether a federal statute violates American federalism rules, as it was asked to do in Printz v. United States.As for the Canadian decision, well, the Charter can be (and has been) amended. Good luck with that, I guess.
posted by jedicus at 12:41 PM on October 8, 2010
Obligatory "Don't ever talk to the police with out a lawyer" video that will really not apply in Canada now.
Nope, it still applies. Don't talk to the police without a lawyer (criminal attorney). If a lawyer isn't permitted, then don't talk.
posted by muddgirl at 12:42 PM on October 8, 2010 [8 favorites]
Nope, it still applies. Don't talk to the police without a lawyer (criminal attorney). If a lawyer isn't permitted, then don't talk.
posted by muddgirl at 12:42 PM on October 8, 2010 [8 favorites]
If things get bad, I'll flee to:
USA (PATRIOT Act, Tea Party)
Most of Southern Europe (Banking Crisis, angry Greeks setting things on fire)
UK (Just as rascist, erosion of personal freedoms)
Iceland (Banking Crisis, angry Icelanders setting things on fire)
Australia (Big spiders, bigger knives)
Canada (Erosion of personal freedoms)
Finland
Sweden
Norway
posted by 2bucksplus at 12:43 PM on October 8, 2010 [10 favorites]
Finland
Sweden
Norway
posted by 2bucksplus at 12:43 PM on October 8, 2010 [10 favorites]
mudgirl: I stand corrected, not quite thinking clearly yet.
posted by cftarnas at 12:47 PM on October 8, 2010
posted by cftarnas at 12:47 PM on October 8, 2010
Okay, this is just weird. The Miranda "rights" aren't actually rights, which is something pretty well understood by the legal community. Apparently that understanding doesn't cross the border.
The thing is, the Miranda warnings are not actually required. If the police don't "read you your rights," but they don't actually violate any of your rights, the mere fact that they didn't make the recitation isn't important. They can interrogate you all they like, as long as they don't use the evidence in court. They can even use anything you say in court if you just spontaneously start talking. The Miranda warnings are required only if the police want to interrogate you, and intend to use what you say against you in court, and you haven't made an obvious and intelligent waiver of your rights. The Miranda warnings are a sort of court-approved evidence that you've done that last bit, not a right in and of themselves.
The actual right involved here is the right to remain silent provided by the Fifth Amendment and the right to counsel provided by the Sixth Amendment. So all this talk about "Miranda rights" is just so much smoke and mirrors, and event the US Supreme Court is growing increasingly frustrated with the talismanic way people are treating those warnings.
If, in the US, you demand an attorney, the police don't have to stop asking you questions, though they won't be able to use what you say against you later on. But that may not be what they're looking for. Maybe they're trying to get you to incriminate someone else. Maybe they're trying to get you to tell them where other evidence is. Could be anything. As long as they do not use your testimony against you (there being no right to not incriminate someone else), they're in the clear.
Obviously, interrogations are the place where a significant amount of police abuse happens, but there's a lot of misunderstanding that goes on about what rights the Constitution actually provides. What's really puzzling is that it seems that that misunderstanding may extend to the Canadian Supreme Court. I'd have thought they'd have known better.
I'll have to read the opinions once they're available.
posted by valkyryn at 12:49 PM on October 8, 2010 [10 favorites]
The thing is, the Miranda warnings are not actually required. If the police don't "read you your rights," but they don't actually violate any of your rights, the mere fact that they didn't make the recitation isn't important. They can interrogate you all they like, as long as they don't use the evidence in court. They can even use anything you say in court if you just spontaneously start talking. The Miranda warnings are required only if the police want to interrogate you, and intend to use what you say against you in court, and you haven't made an obvious and intelligent waiver of your rights. The Miranda warnings are a sort of court-approved evidence that you've done that last bit, not a right in and of themselves.
The actual right involved here is the right to remain silent provided by the Fifth Amendment and the right to counsel provided by the Sixth Amendment. So all this talk about "Miranda rights" is just so much smoke and mirrors, and event the US Supreme Court is growing increasingly frustrated with the talismanic way people are treating those warnings.
If, in the US, you demand an attorney, the police don't have to stop asking you questions, though they won't be able to use what you say against you later on. But that may not be what they're looking for. Maybe they're trying to get you to incriminate someone else. Maybe they're trying to get you to tell them where other evidence is. Could be anything. As long as they do not use your testimony against you (there being no right to not incriminate someone else), they're in the clear.
Obviously, interrogations are the place where a significant amount of police abuse happens, but there's a lot of misunderstanding that goes on about what rights the Constitution actually provides. What's really puzzling is that it seems that that misunderstanding may extend to the Canadian Supreme Court. I'd have thought they'd have known better.
I'll have to read the opinions once they're available.
posted by valkyryn at 12:49 PM on October 8, 2010 [10 favorites]
Of course, it should be said that even if the police don't have to stop asking you questions, they can't actually make you say anything. So never, ever, talk to the police. Just don't. It never makes anything better and can only make things worse.
posted by valkyryn at 12:50 PM on October 8, 2010 [3 favorites]
posted by valkyryn at 12:50 PM on October 8, 2010 [3 favorites]
They can't interrogate you until you're arrested,
Really? In the U.S., the police can question you even if you're not under arrest. You have the right to remain silent. And since you're not under arrest, you also have the right to end the interview and leave.
Is this different in Canada? Can the police not question you if you're not under arrest?
posted by rtha at 12:54 PM on October 8, 2010 [1 favorite]
Really? In the U.S., the police can question you even if you're not under arrest. You have the right to remain silent. And since you're not under arrest, you also have the right to end the interview and leave.
Is this different in Canada? Can the police not question you if you're not under arrest?
posted by rtha at 12:54 PM on October 8, 2010 [1 favorite]
Police in the US do not conduct 'interrogations' - they are 'interviews.' I imagine Canadian police issue 'invitations' - "You are invited to confess to any crimes you feel you may have committed. If it's not too much trouble. TIA"
posted by Kirth Gerson at 12:57 PM on October 8, 2010
posted by Kirth Gerson at 12:57 PM on October 8, 2010
The barbaric wilds of the mythic Canadas are known for their lawlessness and brutality. This should surprise nobody.
Really? In the U.S., the police can question you even if you're not under arrest. You have the right to remain silent. And since you're not under arrest, you also have the right to end the interview and leave.
Asking questions is different from an interrogation. Part of an interrogation is not being able to leave.
posted by kafziel at 12:58 PM on October 8, 2010
Really? In the U.S., the police can question you even if you're not under arrest. You have the right to remain silent. And since you're not under arrest, you also have the right to end the interview and leave.
Asking questions is different from an interrogation. Part of an interrogation is not being able to leave.
posted by kafziel at 12:58 PM on October 8, 2010
I thought there was no crime in Canada.
posted by fourcheesemac at 1:01 PM on October 8, 2010
posted by fourcheesemac at 1:01 PM on October 8, 2010
Asking questions is different from an interrogation. Part of an interrogation is not being able to leave.
Well, you may or may not be detained. Detention also triggers s.10 rights.
posted by Durn Bronzefist at 1:04 PM on October 8, 2010
Well, you may or may not be detained. Detention also triggers s.10 rights.
posted by Durn Bronzefist at 1:04 PM on October 8, 2010
Asking questions is different from an interrogation. Part of an interrogation is not being able to leave.
Strictly speaking, interrogation just means asking questions. Miranda rights come into play during custodial interrogation, when "a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 112 (1995).
I'm sure you knew that, but I wanted to clarify for the non-lawyers.
posted by jedicus at 1:05 PM on October 8, 2010 [2 favorites]
Strictly speaking, interrogation just means asking questions. Miranda rights come into play during custodial interrogation, when "a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 112 (1995).
I'm sure you knew that, but I wanted to clarify for the non-lawyers.
posted by jedicus at 1:05 PM on October 8, 2010 [2 favorites]
Everything here is so full of law-talk that I'm afraid I can't understand it. If I understand what Jedicus is saying, us Canadians no longer have the right to a lawyer when police are asking us questions. Once arrested, we have that right. This means that in the US, if a cop asks you a question, it is an interrogation, and you have the right to have an attorney answer it for you? But you can still keep your mouth shut in Canada until you're arrested.
If I have this right, this doesn't seem such an egregious deterioration of human rights.
posted by battlebison at 1:16 PM on October 8, 2010
If I have this right, this doesn't seem such an egregious deterioration of human rights.
posted by battlebison at 1:16 PM on October 8, 2010
Yeah, I didn't mean to bog anybody down in the semantic difference between interrogation and questioning/interviewing - I mean, I gather there's a legal difference (?), but I was using interrogation and questioning interchangeably, which I perhaps should not have done. Apologies for the confusion.
posted by rtha at 1:16 PM on October 8, 2010
posted by rtha at 1:16 PM on October 8, 2010
If I understand what jedicus is saying, us Canadians no longer have the right to a lawyer when police are asking us questions.
Whoa, let me be clear. I'm an attorney licensed in Missouri. I did not mean to give the impression that I knew anything about Canadian law.
This means that in the US, if a cop asks you a question, it is an interrogation, and you have the right to have an attorney answer it for you?
No, in the US, if a cop asks you a question that doesn't necessarily make it a custodial interrogation, and you don't necessarily have a right to an attorney. The question is whether a reasonable person would have felt free to leave. So if you're in handcuffs in the police station, a reasonable person would not feel free to leave and Miranda comes into play. But if you're standing on the street minding your own business and a cop asks you what you're doing, a reasonable person would probably feel free to leave, so no custodial interrogation, no Miranda rights.
The reason cops warn you of your Miranda rights is so that when you blab anyway it functions as a waiver of those rights. The warning is more of a perfunctory setup, not really a good faith effort to protect you.
posted by jedicus at 1:24 PM on October 8, 2010
Whoa, let me be clear. I'm an attorney licensed in Missouri. I did not mean to give the impression that I knew anything about Canadian law.
This means that in the US, if a cop asks you a question, it is an interrogation, and you have the right to have an attorney answer it for you?
No, in the US, if a cop asks you a question that doesn't necessarily make it a custodial interrogation, and you don't necessarily have a right to an attorney. The question is whether a reasonable person would have felt free to leave. So if you're in handcuffs in the police station, a reasonable person would not feel free to leave and Miranda comes into play. But if you're standing on the street minding your own business and a cop asks you what you're doing, a reasonable person would probably feel free to leave, so no custodial interrogation, no Miranda rights.
The reason cops warn you of your Miranda rights is so that when you blab anyway it functions as a waiver of those rights. The warning is more of a perfunctory setup, not really a good faith effort to protect you.
posted by jedicus at 1:24 PM on October 8, 2010
The question is whether a reasonable person would have felt free to leave.
It's the same test here. The classic case is the officer on the street puts his hand on your shoulder -- you've been detained. Section 10 rights kick in on arrest or detention. When the SCC speaks of "custodial interrogation", it's the "custodial" part that's important.
posted by Durn Bronzefist at 1:28 PM on October 8, 2010
It's the same test here. The classic case is the officer on the street puts his hand on your shoulder -- you've been detained. Section 10 rights kick in on arrest or detention. When the SCC speaks of "custodial interrogation", it's the "custodial" part that's important.
posted by Durn Bronzefist at 1:28 PM on October 8, 2010
If things get bad, I'll flee to:
USA (PATRIOT Act, Tea Party)
Most of Southern Europe (Banking Crisis, angry Greeks setting things on fire)
UK (Just as rascist, erosion of personal freedoms)
Iceland (Banking Crisis, angry Icelanders setting things on fire)
Australia (Big spiders, bigger knives)
Canada (Erosion of personal freedoms)
Finland
Sweden
Norway
You forgot In Zid (New Zealand).
posted by Mental Wimp at 1:28 PM on October 8, 2010
USA (PATRIOT Act, Tea Party)
Most of Southern Europe (Banking Crisis, angry Greeks setting things on fire)
UK (Just as rascist, erosion of personal freedoms)
Iceland (Banking Crisis, angry Icelanders setting things on fire)
Australia (Big spiders, bigger knives)
Canada (Erosion of personal freedoms)
Finland
Sweden
Norway
You forgot In Zid (New Zealand).
posted by Mental Wimp at 1:28 PM on October 8, 2010
Maybe they're trying to get you to tell them where other evidence is. Could be anything. As long as they do not use your testimony against you (there being no right to not incriminate someone else), they're in the clear.
IANAL, but isn't this fruit of the poisoned tree?
posted by Mental Wimp at 1:31 PM on October 8, 2010
IANAL, but isn't this fruit of the poisoned tree?
posted by Mental Wimp at 1:31 PM on October 8, 2010
If I understand what Jedicus is saying, us Canadians no longer have the right to a lawyer when police are asking us questions.
It's pretty simple, really. You never had a right to have a lawyer present during questioning. That some people erroneously assumed this doesn't make it true, and this decision merely confirms that Canadian law is not based on popular fiction. The police may ask questions; they're investigators, it's their job to do this. There is no requirement that a lawyer be present however, just think of the logistics involved in such a scenario. You are not obligated to answer police questions, whether under arrest or not. Smart suspects don't, but many suspects aren't very smart.
posted by PareidoliaticBoy at 1:31 PM on October 8, 2010 [5 favorites]
It's pretty simple, really. You never had a right to have a lawyer present during questioning. That some people erroneously assumed this doesn't make it true, and this decision merely confirms that Canadian law is not based on popular fiction. The police may ask questions; they're investigators, it's their job to do this. There is no requirement that a lawyer be present however, just think of the logistics involved in such a scenario. You are not obligated to answer police questions, whether under arrest or not. Smart suspects don't, but many suspects aren't very smart.
posted by PareidoliaticBoy at 1:31 PM on October 8, 2010 [5 favorites]
You forgot In Zid (New Zealand).
Racist TV presenters. Miles from anywhere. Sheep. Terrifying giant flightless birds that roam the bush.
posted by Infinite Jest at 1:33 PM on October 8, 2010 [1 favorite]
Racist TV presenters. Miles from anywhere. Sheep. Terrifying giant flightless birds that roam the bush.
posted by Infinite Jest at 1:33 PM on October 8, 2010 [1 favorite]
IANAL, but isn't this fruit of the poisoned tree?
Nope. You don't have standing to complain that someone else's rights were violated, and they can't raise it in a case where they're not a party.
posted by kafziel at 1:42 PM on October 8, 2010
Nope. You don't have standing to complain that someone else's rights were violated, and they can't raise it in a case where they're not a party.
posted by kafziel at 1:42 PM on October 8, 2010
...Once detained, the individual’s choice whether to speak to the authorities remains, and is protected by the s. 10 informational requirements and the s. 7 right to silence. [para 21]
“Detention” also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty. [para 22]
...The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual’s choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longer entitled simply to expect cooperation from an individual. Unless, as stated earlier, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subject with his or her s. 10(b) rights. That the obligation arises only on detention represents part of the balance between, on the one hand, the individual rights protected by ss. 9 and 10 and enjoyed by all members of society, and on the other, the collective interest of all members of society in the ability of the police to act on their behalf to investigate and prevent crime. [para 39]
R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353
posted by Durn Bronzefist at 1:42 PM on October 8, 2010 [2 favorites]
“Detention” also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty. [para 22]
...The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual’s choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longer entitled simply to expect cooperation from an individual. Unless, as stated earlier, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subject with his or her s. 10(b) rights. That the obligation arises only on detention represents part of the balance between, on the one hand, the individual rights protected by ss. 9 and 10 and enjoyed by all members of society, and on the other, the collective interest of all members of society in the ability of the police to act on their behalf to investigate and prevent crime. [para 39]
R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353
posted by Durn Bronzefist at 1:42 PM on October 8, 2010 [2 favorites]
I'm reminded of something David Milch said (paraphrasing): "One of my police consultants on NYPD Blue said to me, 'If you show a single cop giving a suspect his Miranda rights, I'll walk off the show for good.'"
Milch maintains that good cops never give Miranda rights. Instead, he claims, they get confessions and lie after the fact about whether Miranda was given.
posted by dobbs at 1:46 PM on October 8, 2010 [2 favorites]
Milch maintains that good cops never give Miranda rights. Instead, he claims, they get confessions and lie after the fact about whether Miranda was given.
posted by dobbs at 1:46 PM on October 8, 2010 [2 favorites]
David Milch and Detective Bill Clark on Charlie Rose. Topics include interrogation and Miranda Rights.
posted by dobbs at 1:53 PM on October 8, 2010 [2 favorites]
posted by dobbs at 1:53 PM on October 8, 2010 [2 favorites]
The U.S. actually has quite extensive procedural protections for defendants in our criminal justice system, and I wouldn't be surprised if we had more than they do in Canada even before this decision. I also know that our criminal justice system is badly broken, so I wouldn't necessarily rush to judge Canada based on its deviation from how we do things. We've had the right to an attorney during custodial interrogations for some time here, and we're not exactly a defendant's paradise.
posted by Doug at 2:04 PM on October 8, 2010
posted by Doug at 2:04 PM on October 8, 2010
Well, this is certainly a surprise. Like almost everyone else, I assumed that we had some equivalent of the American Miranda rights. Apparently not.
So the police can arrest you and grill you as long as they like, and your ability to avoid false arrest is directly related to your strength of will and endurance. But it's okay, because this is Canada, and the police here would never arrest the wrong person then relentlessly interrogate them until a confession is obtained. Of course not. We're the good guys.
Ordinarily I'd say that this is a situation where Parliament needs to step in and correct the deficiencies the Supreme Court has uncovered in our system of laws. But we all know how that would turn out. Maybe this can be fixed in the future, under a different administration.
posted by Kevin Street at 2:10 PM on October 8, 2010
So the police can arrest you and grill you as long as they like, and your ability to avoid false arrest is directly related to your strength of will and endurance. But it's okay, because this is Canada, and the police here would never arrest the wrong person then relentlessly interrogate them until a confession is obtained. Of course not. We're the good guys.
Ordinarily I'd say that this is a situation where Parliament needs to step in and correct the deficiencies the Supreme Court has uncovered in our system of laws. But we all know how that would turn out. Maybe this can be fixed in the future, under a different administration.
posted by Kevin Street at 2:10 PM on October 8, 2010
Excuse me, that should read "your ability to avoid being falsely convicted." The arrest would have already occurred.
posted by Kevin Street at 2:22 PM on October 8, 2010
posted by Kevin Street at 2:22 PM on October 8, 2010
Of course, it should be said that even if the police don't have to stop asking you questions, they can't actually make you say anything.
This rubber hose and tazer argue against that.
posted by ROU_Xenophobe at 2:31 PM on October 8, 2010
This rubber hose and tazer argue against that.
posted by ROU_Xenophobe at 2:31 PM on October 8, 2010
so the decision comes as a surprise to those of us who grew up watching American cop shows.
I bet a lot of things come to you as a surprise.
posted by telstar at 2:31 PM on October 8, 2010 [1 favorite]
I bet a lot of things come to you as a surprise.
posted by telstar at 2:31 PM on October 8, 2010 [1 favorite]
Don't talk to the police without a lawyer (criminal attorney). If a lawyer isn't permitted, then don't talk.
Don't talk to the police, period. If a lawyer is present they will be there to tell you not to answer any questions. If you want to admit guilt the place to do so is in court. It will be the very first thing you get an opportunity to do.
posted by tallus at 2:32 PM on October 8, 2010 [1 favorite]
Don't talk to the police, period. If a lawyer is present they will be there to tell you not to answer any questions. If you want to admit guilt the place to do so is in court. It will be the very first thing you get an opportunity to do.
posted by tallus at 2:32 PM on October 8, 2010 [1 favorite]
"Well, you may or may not be detained. Detention also triggers s.10 rights."
For some reason, I misread this as saying that detention triggered 1d10 rights.
"Oh, I'm sorry, eh, you failed your saving throw."
posted by klangklangston at 2:38 PM on October 8, 2010
For some reason, I misread this as saying that detention triggered 1d10 rights.
"Oh, I'm sorry, eh, you failed your saving throw."
posted by klangklangston at 2:38 PM on October 8, 2010
Don't talk to the police, period. If a lawyer is present they will be there to tell you not to answer any questions. If you want to admit guilt the place to do so is in court. It will be the very first thing you get an opportunity to do.
I'm thinking even in contexts where I am not guilty.
posted by muddgirl at 2:38 PM on October 8, 2010
I'm thinking even in contexts where I am not guilty.
posted by muddgirl at 2:38 PM on October 8, 2010
"I bet a lot of things come to you as a surprise."
If you asked them, I bet most Canadians would say that our legal system is essentially the same as the American one. (Except for a couple of exceptions like the American right to have a gun and our funky language laws.) We grow up immersed in American culture, and since the vast majority of us are never in a situation where our constitutional rights are tested, it's easy to assume that there are no big differences.
posted by Kevin Street at 2:43 PM on October 8, 2010
If you asked them, I bet most Canadians would say that our legal system is essentially the same as the American one. (Except for a couple of exceptions like the American right to have a gun and our funky language laws.) We grow up immersed in American culture, and since the vast majority of us are never in a situation where our constitutional rights are tested, it's easy to assume that there are no big differences.
posted by Kevin Street at 2:43 PM on October 8, 2010
In that case, what, you're interrogated for as long as the police feel like it?
Pretty much ya. Note that this isn't an erosion of rights or some sweeping change to how things are done. This is the status quo in Canada and has been at least since the Charter was put in place.
It's really hard to stay silent when sleep deprived, stressed out and being interogated by trained professionals but shutting the smeg up and keeping silent is the best defense and your only lawfully required option.
posted by Mitheral at 3:02 PM on October 8, 2010 [2 favorites]
Pretty much ya. Note that this isn't an erosion of rights or some sweeping change to how things are done. This is the status quo in Canada and has been at least since the Charter was put in place.
It's really hard to stay silent when sleep deprived, stressed out and being interogated by trained professionals but shutting the smeg up and keeping silent is the best defense and your only lawfully required option.
posted by Mitheral at 3:02 PM on October 8, 2010 [2 favorites]
Ahem. Unless you are assisting the police in an investigation that has ZERO possibility of you becoming a suspect, the rule is to tell them nothing, except your name, once. Any words you are foolish enough to spout will ONLY be used against you; and this is what every lawyer, ever, will always advise you... for about. ... oh... $500. You say nothing, nada, goose-egg, zilch, zip, zippo. Capische?
posted by PareidoliaticBoy at 3:23 PM on October 8, 2010 [1 favorite]
posted by PareidoliaticBoy at 3:23 PM on October 8, 2010 [1 favorite]
In the UK a court is entitled to infer a lack of innocence from a suspect's refusal to talk.
posted by essexjan at 3:24 PM on October 8, 2010 [3 favorites]
posted by essexjan at 3:24 PM on October 8, 2010 [3 favorites]
"I thought there was no crime in Canada."
I dunno, I sure have seen a lot of red-light-running in the last couple of days here in Toronto.
posted by mr_crash_davis mark II: Jazz Odyssey at 3:24 PM on October 8, 2010
I dunno, I sure have seen a lot of red-light-running in the last couple of days here in Toronto.
posted by mr_crash_davis mark II: Jazz Odyssey at 3:24 PM on October 8, 2010
One time, in Vancouver, someone bumped into me and didn't apologize. But it was Boxing Day and the crowds were insane, so I didn't pursue it. And the person was probably from the US anyway.
posted by rtha at 3:47 PM on October 8, 2010 [1 favorite]
posted by rtha at 3:47 PM on October 8, 2010 [1 favorite]
That was me. I was nodding on Tryptophan.
posted by PareidoliaticBoy at 3:51 PM on October 8, 2010
posted by PareidoliaticBoy at 3:51 PM on October 8, 2010
valkyryn: "Obviously, interrogations are the place where a significant amount of police abuse happens, but there's a lot of misunderstanding that goes on about what rights the Constitution actually provides. What's really puzzling is that it seems that that misunderstanding may extend to the Canadian Supreme Court. I'd have thought they'd have known better.
Where specifically do you see evidence of a misunderstanding of Miranda rights? These cases are specifically about self-implicating statements, so your exceptions don't have any bearing on the situation. It seems kind of lazy to accuse the justices of misunderstanding Miranda rights without actually pointing to any evidence of this misunderstanding.
posted by ssg at 3:55 PM on October 8, 2010
Where specifically do you see evidence of a misunderstanding of Miranda rights? These cases are specifically about self-implicating statements, so your exceptions don't have any bearing on the situation. It seems kind of lazy to accuse the justices of misunderstanding Miranda rights without actually pointing to any evidence of this misunderstanding.
posted by ssg at 3:55 PM on October 8, 2010
There's a phenomenal PhD thesis waiting to be explored here for any Canadian who has the inclination to take a crack at it:
How has the export of American culture and the American experience via film and television affected/warped/misinformed people in importing countries of their own rights? Or health care systems? Or insurance laws? Or, hell, tax laws or politics?
Does the portrayal of the health care system in a show like ER make Canadians afraid to go to their hospital, which is under a completely different system? Or subconsciously less willing to go and see a doctor?
TBH, I have no idea where this goes. It's just something I've wondered for the last couple of years. The same question likely applies to Australia and Britain to a lesser extent.
posted by Decimask at 4:31 PM on October 8, 2010
How has the export of American culture and the American experience via film and television affected/warped/misinformed people in importing countries of their own rights? Or health care systems? Or insurance laws? Or, hell, tax laws or politics?
Does the portrayal of the health care system in a show like ER make Canadians afraid to go to their hospital, which is under a completely different system? Or subconsciously less willing to go and see a doctor?
TBH, I have no idea where this goes. It's just something I've wondered for the last couple of years. The same question likely applies to Australia and Britain to a lesser extent.
posted by Decimask at 4:31 PM on October 8, 2010
Do we even have Miranda rights in Canada? Have we ever?
The thing that pisses me off about growing up in Canada is that we NEVER learned ANYTHING about our Charter, other than a quick sidenote that it came into effect in 1982, or whenever. We study endlessly the (mostly useless) history of the Metis, fur trade, Hudson Bay Company, etc., but we don't learn anything that's actually immediately relevant to our lives. At least, not in my experience or those of my siblings or any friends I have spoken with. I have a copy of the charter saved on my computer and I've always wanted to buy a pocket code, but it's such a short and vague document and open to interpretation or rulings/laws that basically, to my understanding anyways, can amend it almost at will.
Even in University, studying courses in Canadian History, Sociology, etc. etc. I've never heard a thing about our Charter or Constitution. Only a brief mention about some bills that never passed in relation to First Nations land claims, and the UN Convention on Rights of the Child, both in Anthropology classes.
For all the things we Canadians poke fun of the Americans about, at least they (generally) know their own constitution and learn all about it as children.
posted by 1000monkeys at 4:46 PM on October 8, 2010 [4 favorites]
The thing that pisses me off about growing up in Canada is that we NEVER learned ANYTHING about our Charter, other than a quick sidenote that it came into effect in 1982, or whenever. We study endlessly the (mostly useless) history of the Metis, fur trade, Hudson Bay Company, etc., but we don't learn anything that's actually immediately relevant to our lives. At least, not in my experience or those of my siblings or any friends I have spoken with. I have a copy of the charter saved on my computer and I've always wanted to buy a pocket code, but it's such a short and vague document and open to interpretation or rulings/laws that basically, to my understanding anyways, can amend it almost at will.
Even in University, studying courses in Canadian History, Sociology, etc. etc. I've never heard a thing about our Charter or Constitution. Only a brief mention about some bills that never passed in relation to First Nations land claims, and the UN Convention on Rights of the Child, both in Anthropology classes.
For all the things we Canadians poke fun of the Americans about, at least they (generally) know their own constitution and learn all about it as children.
posted by 1000monkeys at 4:46 PM on October 8, 2010 [4 favorites]
Well, I'd say you have the right to a lawyer, but your government is choosing not to respect that right.
6 of one, half a dozen of the other.
posted by John Cohen at 7:18 PM on October 8, 2010
6 of one, half a dozen of the other.
posted by John Cohen at 7:18 PM on October 8, 2010
Racist TV presenters. Miles from anywhere. Sheep. Terrifying giant flightless birds that roam the bush.
Sounds delightful, sign me up!
posted by mannequito at 8:12 PM on October 8, 2010 [1 favorite]
Sounds delightful, sign me up!
posted by mannequito at 8:12 PM on October 8, 2010 [1 favorite]
Do we even have Miranda rights in Canada? Have we ever?
No. PareidoliaticBoy nailed it. No "rights" have been taken away with this decision.
End of discussion. Let's move on.
posted by ethnomethodologist at 8:12 PM on October 8, 2010
No. PareidoliaticBoy nailed it. No "rights" have been taken away with this decision.
End of discussion. Let's move on.
posted by ethnomethodologist at 8:12 PM on October 8, 2010
As long as that possible crime is committed with one foot on Canadian soil and the other on the US side, and you are apprehended by law enforcement officials from either side at the same time.
If a crime occurs on the border between the US and Canada, where do they jail the victims?
posted by kmz at 10:21 PM on October 8, 2010 [1 favorite]
If a crime occurs on the border between the US and Canada, where do they jail the victims?
posted by kmz at 10:21 PM on October 8, 2010 [1 favorite]
Well, the cops are Canadian. If you raise your voice they'll get really uncomfortable, and probably apologize and then let you talk to a lawyer in order to avoid conflict.
Never been dragged out of a deep sleep in your own bed and had your head put through some drywall by Canadian cops, I presume. I have (admittedly a long time ago), and police are police, Canadian or not.
That said, once they figured out that I wasn't the bad guy they were looking for, they were pretty cool about it, and quite apologetic.
posted by stavrosthewonderchicken at 11:29 PM on October 8, 2010 [1 favorite]
Never been dragged out of a deep sleep in your own bed and had your head put through some drywall by Canadian cops, I presume. I have (admittedly a long time ago), and police are police, Canadian or not.
That said, once they figured out that I wasn't the bad guy they were looking for, they were pretty cool about it, and quite apologetic.
posted by stavrosthewonderchicken at 11:29 PM on October 8, 2010 [1 favorite]
It seems kind of lazy to accuse the justices of misunderstanding Miranda rights without actually pointing to any evidence of this misunderstanding.
That's probably because I RTFA, where the evidence is very, very early in the article, and kind of assumed that the people interacting with my comments would have too.
Get off my damned case.
posted by valkyryn at 5:25 PM on October 9, 2010
That's probably because I RTFA, where the evidence is very, very early in the article, and kind of assumed that the people interacting with my comments would have too.
Get off my damned case.
posted by valkyryn at 5:25 PM on October 9, 2010
So you want to base your accusation on some vague wording in some news article, instead of reading the actual text? It doesn't speak well for your skills as an attorney if you think that you'll find evidence in a news article.
You can still go ahead and back up your assertion with actual citations (if you can find them), instead of just slagging people who understand the difference between a news article and a Supreme Court decision.
posted by ssg at 5:45 PM on October 9, 2010
You can still go ahead and back up your assertion with actual citations (if you can find them), instead of just slagging people who understand the difference between a news article and a Supreme Court decision.
posted by ssg at 5:45 PM on October 9, 2010
Well, I'd say you have the right to a lawyer, but your government is choosing not to respect that right.
Meaningless drivel. There's no such thing as a natural right. You want a right? Fight for it, pay with your blood if required.
posted by atrazine at 12:10 AM on October 10, 2010
Meaningless drivel. There's no such thing as a natural right. You want a right? Fight for it, pay with your blood if required.
posted by atrazine at 12:10 AM on October 10, 2010
In the UK a court is entitled to infer a lack of innocence from a suspect's refusal to talk.
... seriously? Can you back this up, because that's fucking psychotic.
posted by kafziel at 3:35 PM on October 10, 2010
... seriously? Can you back this up, because that's fucking psychotic.
posted by kafziel at 3:35 PM on October 10, 2010
kafziel & mitheral, i remember being taught this in jr. high in the '70s, so i suspect the substance in mitheral's wiki link is clarification rather than establishment of law. (Specifically, my 9th grade social studies teacher taught us that British law functioned on a 'presumption of guilt', and gave right of silence as an example.)
posted by lodurr at 9:57 AM on October 21, 2010
posted by lodurr at 9:57 AM on October 21, 2010
Things have changed since the 70s, lodurr. The police caution was changed a few years ago, so basically if you say nothing when questioned by a police officer, even if you're relying on legal advice, the court can infer guilt from this. In other words, you are required to rebut the prosecution's case, because, well, if you don't, then you must be guilty.
posted by essexjan at 5:54 AM on October 23, 2010
posted by essexjan at 5:54 AM on October 23, 2010
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posted by Dark Messiah at 12:03 PM on October 8, 2010 [1 favorite]