Legal counsel right does not extend to interrogation room: Supreme Court of Canada

[Iowa_Flames_Fan]

Originally Posted by mikey_the_redneck

This ruling goes hand in hand to all that money the government is about to inject into expanding our jail system....funny how that worked out..

It is bizarre that the Harper government seems to think more jails is an urgent policy objective, in spite of the clear decline in crime over the past few years.

Of course, it goes without saying that we need jails to deal with the rise in unreported crime.

[Bownesian]

Originally Posted by Iowa_Flames_Fan

It is bizarre that the Harper government seems to think more jails is an urgent policy objective, in spite of the clear decline in crime over the past few years.

Of course, it goes without saying that we need jails to deal with the rise in unreported crime.

Clearly the government's intent has been to to increases incarceration durations by increasing mandatory sentences while reducing credits.

To inject some factual data into this discussion. Even though there is a reduction in the crime rate:



There has also been a change in the incarceration rate:



Because both of these are *rates*, once you add an increase in the rate/100,000 citizens to the rate of population growth, you get an increase in the number of people in prisons. See:
http://www40.statcan.gc.ca/l01/cst01/legal31a-eng.htm

The average number of prisoners in custody increased from 32,121 in 2004 to 37,200 in 2008 (an increase of 15.8%). So, while the crime rate may have fallen somewhat in that time (and significantly since the peak in 1991), the number of prisoners has increased and continues to increase as parliament continues to extend incarceration durations.

The "Harper government" plans on building prisons to house prisoners, not crime rates.

[Iowa_Flames_Fan]

Originally Posted by Bownesian

Clearly the government's intent has been to to increases incarceration durations by increasing mandatory sentences while reducing credits.

To inject some factual data into this discussion. Even though there is a reduction in the crime rate:



There has also been a change in the incarceration rate:



Because both of these are *rates*, once you add an increase in the rate/100,000 citizens to the rate of population growth, you get an increase in the number of people in prisons. See:
http://www40.statcan.gc.ca/l01/cst01/legal31a-eng.htm

The average number of prisoners in custody increased from 32,121 in 2004 to 37,200 in 2008 (an increase of 15.8%). So, while the crime rate may have fallen somewhat in that time (and significantly since the peak in 1991), the number of prisoners has increased and continues to increase as parliament continues to extend incarceration durations.

The "Harper government" plans on building prisons to house prisoners, not crime rates.

Those are fair points; and they serve to emphasize that the Harper government is developing policies in response to the wrong problem.

It's sort of akin to a person who discovers that the bucket he put under the hole in his leaky roof is full of water: his problem isn't "I need more buckets"--it's "I need to fix the roof."

[Bownesian]

Originally Posted by Iowa_Flames_Fan

Those are fair points; and they serve to emphasize that the Harper government is developing policies in response to the wrong problem.

It's sort of akin to a person who discovers that the bucket he put under the hole in his leaky roof is full of water: his problem isn't "I need more buckets"--it's "I need to fix the roof."

Your analogy is faulty.

The problem they are attempting to solve is not the problem of prison populations. They are attempting to address the perception, right or wrong, that criminals in Canada get off easy and are thus intentionally attempting to incarcerate more criminals for longer sentences. This has led to an increase in the incarceration rate, an increase in the number of prisoners and has created a need for more prisons.

It's all too easy to take the "falling crime rate" bait and take that to mean that with current laws and population growth rates, this will not lead to more prisoners and thus a need for more prisons. You may think that the root cause of the government's prison-building policy is bad policy and if you do I invite you to make that point but it's fallacious to attack it by using statistics out of context, as the federal opposition has done.

[transplant99]

I think it abhorrent that if I requested legal council I can be denied that.

true North strong and "free"? My ass.

[Iowa_Flames_Fan]

Originally Posted by Bownesian

Your analogy is faulty.

The problem they are attempting to solve is not the problem of prison populations. They are attempting to address the perception, right or wrong, that criminals in Canada get off easy and are thus intentionally attempting to incarcerate more criminals for longer sentences. This has led to an increase in the incarceration rate, an increase in the number of prisoners and has created a need for more prisons.

It's all too easy to take the "falling crime rate" bait and take that to mean that with current laws and population growth rates, this will not lead to more prisoners and thus a need for more prisons. You may think that the root cause of the government's prison-building policy is bad policy and if you do I invite you to make that point but it's fallacious to attack it by using statistics out of context, as the federal opposition has done.

OK--two points.

1. Shouldn't you be working?

2. I think you're misconstruing a key feature of my argument, which is understandable since that argument took the form of innuendo and analogy rather than open statement. So let me fix that:

My argument is not (as you seem to imply) "crime rates are falling therefore building prisons is wrong." It is "building prisons to address overcrowding in prisons is akin to putting another bucket under a leaky roof." Let me be clear:

A. The establishment of mandatory minimum sentences for more than the most heinous of criminal code offenses is a wrong-headed policy, for many reasons--one of which you've touched on. First because it removes discretion from our judicial branch, and puts it into the hands of politicians who manipulate it for votes. Secondly, because it results in overcrowding of prisons, which is in this case (as you concede) a symptom of bad policy, not a of rising crime.
B. Building more prisons is really a way of sticking your head in the sand and not admitting that your policy is bad. Their policy has created a problem which didn't exist before--and rather than change that policy, they're applying a bandaid to the problem that their own policy created. That's called treating the symptom and not the disease.

The fact that the backdrop of all of this is a FALLING crime rate just puts an exclamation mark on the fact that their policy was cynical and calculated in the first place. There's no easier political stance than "tough on crime." It sounds really good to people who don't ask critical questions of politicians, which (let's face it) is most people of all political stripes.

[Bownesian]

Originally Posted by Iowa_Flames_Fan

(snip)
A. The establishment of mandatory minimum sentences for more than the most heinous of criminal code offenses is a wrong-headed policy, for many reasons--one of which you've touched on. First because it removes discretion from our judicial branch, and puts it into the hands of politicians who manipulate it for votes. Secondly, because it results in overcrowding of prisons, which is in this case (as you concede) a symptom of bad policy, not a of rising crime.
(snip)

We probably aren't that far apart on our thoughts on judicial discretion as I concede the need for judicial flexibility, especially with first-time offenders and non-violent crimes. I do however sympathize with the perception that our sentencing is a little light in Canada, especially in the case of repeat, sexual and violent offenders. To make a few specific examples:
- I don't agree with the idea of concurrent sentencing and specifically I think that firearms sentences should be served in addition to whatever other crimes are committed (i.e. if you break into a house while in possession of an illegal handgun, you should serve the handgun sentence once you're done with the B&E sentence).
- I believe that multiple murder and assault sentences should be served consecutively not concurrently as victims should not face parole hearings as early as they do and I think that society is best served by keeping these offenders locked away for ever. Rehabilitation is a noble idea and is appropriate for many offences but not for these.
- I also agree with removing the extra sentence reductions for time served in remand before trial is complete.

I have very little sympathy for repeat, violent and sexual offenders and if it costs more to keep those folks in jail longer, I'm fine with that. Frankly, I would prefer it if judges opted to implement these kinds of changes themselves but that has not been the trend over the last 30 years and thus it's Parliament's job to give them direction in this area.

My reason for engaging you in this debate was to make the point that the government's prison-building isn't an accident and isn't the result of some kind of error in arithmetic, as is implied by the falling crime rate argument. In fact, there is an actual error in arithmetic if one assumes that falling crime rates will always mean falling prison populations because we are in a regime of 1-2% population growth. I did the math comparing population growth to crime rate reduction and the resulting change in total number of crimes committed is a modest reduction, not the stark drop implied by the drop in crime rates since 1991. Once you add in longer sentences to the effects of population growth, it's clear that there will be more prisoners.

The observed growth in prison populations is a predicted consequence of the tough-on-crime platform the current government was elected on. Whether it's a lowest common denominator platform or good or bad policy is debatable but that wasn't the point you originally made and isn't the point currently being made by the opposition.

[jar_e]

Originally Posted by transplant99

I think it abhorrent that if I requested legal council I can be denied that.

true North strong and "free"? My ass.

You're not denied access to legal counsel. You're denied the access to have legal counsel present with you at the time of an interrogation...which are two totally different things. As the article states:

By a 5-4 margin, the nine-member bench said that the right to counsel entails a phone call and consultation after arrest, but it does not extend to having lawyers in police interview rooms.

[Iowa_Flames_Fan]

Originally Posted by Bownesian

My reason for engaging you in this debate was to make the point that the government's prison-building isn't an accident and isn't the result of some kind of error in arithmetic, as is implied by the falling crime rate argument. [snip]

The observed growth in prison populations is a predicted consequence of the tough-on-crime platform the current government was elected on. Whether it's a lowest common denominator platform or good or bad policy is debatable but that wasn't the point you originally made and isn't the point currently being made by the opposition.

Your faith in the government is misplaced. They are the ones who have linked their prison-building policy to the chimera of rising crime, not the opposition and certainly not me:

Toews dismissed reports from Statistics Canada that the crime rate is falling. In July, the statistical agency reported that "both the volume and severity of police-reported crime fell in 2009," three per cent from 2008 and 17 per cent from 1999.

"The crime isn't going down," Toews insisted.

Read more: http://www.cbc.ca/canada/story/2010/...#ixzz11yugLJJF

Prior to that it was Stockwell Day who insisted that the drop in crime just meant that the new policy problem was unreported crime. That was truly brilliant.

I'll grant that Day isn't exactly a genius, but his comment reveals that the Tories really need this policy problem to be on the front-burner, even if it turns out that it doesn't exist in real life.

You're essentially asking me to ignore the government's stated rationale for this policy and instead ascribe to them one that is less illogical. I'm not prepared to do that; nothing I've heard from Vic Toews or Stockwell Day indicates to me that they have a brain cell between them, let alone a rational, well-thought out criminal justice policy that goes beyond crass voter manipulation.

The rise in prison populations might be a predictable outcome, but it's not a predicted one--at least not according to what these guys are saying.

[Bownesian]

Originally Posted by Iowa_Flames_Fan

(snip)
The rise in prison populations might be a predictable outcome, but it's not a predicted one--at least not according to what these guys are saying.

It's fair to say that there is spin on both sides:

I'm sure the conservatives know that the changes in sentencing has contributed to the observed increase in prison populations. Even if Toews and Day aren't that bright, they get briefed by their ministries and have been told that populations are on the rise. What they don't want to say is that their policies has led to the need to spend money on prisons (i.e. that their tough-on-crime agenda is in opposition to their smaller government agenda) so they get into the lie of unreported crime.

Similarly, I'm sure the liberals know that crime rate is not the same as number of prisoners and I'm sure they are aware that prisons are currently overcrowded and that populations are increasing, not decreasing. They don't want to acknowledge that by voting with the government (for fear of seeming weak on crime) or by abstaining on their justice bills, they have contributed to this problem. They instead trot out a lie which says that a falling crime rate means we don't need more prison space, that prisons are not currently overcrowded and that they aren't projected to need more space in the near term.

The trouble is, both of the above lies have a kernel of truth to them. Crime reporting rates has been shown to be in decline in the last 30 years because people know that there isn't much point and falling crime rates might well mean that we need less prisons, especially if we get into a situation of zero or negative population growth in the future.

[Nage Waza]

Originally Posted by valo403

So you're of the opinion that the standard should be guilty until proven innocent? I'm sure that will remain your opinion if you happen to be in the wrong place at the wrong time and are falsely accused.

This standard allows the police to abuse their power to illicit incriminating responses. Having a lawyer present doesn't prevent questioning, it prevents misleading and coercive questioning. Apparently in Canada the prevention of that isn't an issue. Pathetic.

Where would you ever get the idea that I thought people are guilty until proven innocent? Are you making things up about me? Try to stick to facts. I am positive that if I am questioned by the police, I won't need a lawyer because I am innocent. It is as simple as that.
The standard does not allow police to abuse their power. Where do you make this stuff up?

[Pinner]

Originally Posted by Nage Waza

I am positive that if I am questioned by the police, I won't need a lawyer because I am innocent. It is as simple as that.

You obviously haven't watched the video posted.

[transplant99]

Originally Posted by jar_e

You're not denied access to legal counsel. You're denied the access to have legal counsel present with you at the time of an interrogation...which are two totally different things. As the article states:

If i want to talk to an attorney, whenever that may be, and someone has the power to deny that request to me, its the exact same thing.

I cant think of another scenario in existance where if you wanted to talk to someone with expertise in an area, that anyone could deny that to you on any grounds.

The whole thing smacks of a blanket of protection for police should they use force or coercion in trying to gain a confession. I cant think of one other reason why this law would exist.

[transplant99]

Originally Posted by Nage Waza

Where would you ever get the idea that I thought people are guilty until proven innocent? Are you making things up about me? Try to stick to facts. I am positive that if I am questioned by the police, I won't need a lawyer because I am innocent. It is as simple as that.
The standard does not allow police to abuse their power. Where do you make this stuff up?

No it really isnt as simple as that.

As some one who went through this exact thing many years ago, I can assure you that whether or not you are innocent has no bearing on anything. It always comes down to what the police/investigators believe. Your believing innocence will prevail, just because you are, is both naive and dangerous. The world isn't black and white like that and its even more murky when it comes to the "justice" system.

[flylock shox]

Originally Posted by transplant99

The whole thing smacks of a blanket of protection for police should they use force or coercion in trying to gain a confession. I cant think of one other reason why this law would exist.

Protections remain in the existing law against such things. From the majority in the companion decision of McCrimmon:

...the better approach is to continue to deal with claims of subjective incapacity or intimidation under the confessions rule.

[flylock shox]

A little more about the confessions rule from the SCC:

When reviewing a confession, a trial judge should therefore consider all the relevant factors. The judge should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule. The relevant factors include threats or promises, oppression, the operating mind requirement and police trickery. While obviously imminent threats of torture will render a confession inadmissible, most cases will not be so clear. The use of veiled threats, for instance, requires close examination. The police may often offer some kind of inducement to the suspect to obtain a confession. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about the voluntariness of the confession. An important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. Oppressive conditions and circumstances clearly also have the potential to produce an involuntary confession. In assessing oppression, courts should consider whether a suspect was deprived of food, clothing, water, sleep, or medical attention; was denied access to counsel; was confronted with fabricated evidence; or was questioned aggressively for a prolonged period of time. The operating mind doctrine only requires that the accused knows what he is saying and that it may be used to his detriment. Like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule. The operating mind doctrine is just one application of the general rule that involuntary confessions are inadmissible. Lastly, the police use of trickery to obtain a confession must also be considered in determining whether a confession is voluntary or not.

[transplant99]

You know what the absolute best defense from intimidation or coercion is?

Having the suspects attorney present.

[Resolute 14]

I can see a lot of judges throwing confessions and evidence out because of coercion by police.

Ultimately, blame Trudeau's wundercharter for not thinking of this. If it is that big of a deal (and it is), then people need to push their MPs to pass a law to fill this gap.

[valo403]

Originally Posted by Nage Waza

Where would you ever get the idea that I thought people are guilty until proven innocent? Are you making things up about me? Try to stick to facts. I am positive that if I am questioned by the police, I won't need a lawyer because I am innocent. It is as simple as that.
The standard does not allow police to abuse their power. Where do you make this stuff up?

This standard does not allow police to abuse their power? Are you kidding me? This standard allows interrogations to occur with absolutely no oversight, it opens the door to massive abuse of power.

[Rathji]

Why the sudden uproar? This ruling maintains the status quo.