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

[valo403]

Originally Posted by Coys1882

Why are you comparing a murder investigation to a broken window?

To me, in my opinion, the risk of sending an innocent man to prison is so slim; that not allowing a suspected criminal access to his lawyer during initial questioning is an acceptable risk.

What does granting access to legal counsel deny the police? The ability to question? Nope. The ability to investigate? Nope. The ability to conduct those activities while crossing legal and ethical boundaries? Ah, that's the one.

That's my issue with this ruling, a contrary outcome would not ahve denied the police any justified means of doing their jobs while at the smae time ensuring that suspects have the ability to assert their rights in an educated manner.

[Nage Waza]

Originally Posted by transplant99

If you cant determine what i was saying...then so be it.

You said nothing in your post and I have no idea what you were talking about. Read your post and help me figure out what it is that you are talking about.

[Nage Waza]

Originally Posted by Bobblehead

They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety. - Benjamin Franklin

Who cares? Is having a lawyer during interrogation an essential liberty? It is something we already do not have! I certainly don't think Franklin was thinking of society today where many people think giving to their country is akin to removing liberty.

[Nage Waza]

Originally Posted by valo403

So you'll sacrifice those rights when it's you who winds up wrongfully convicted? I guess it's always good to have somebody volunteering to be a martyr.

Sacrifice what rights? Why do you keep dragging this out? No rights have been removed, so we are not talking about 'sacrificing' rights. Status quo is where we are at. Quit talking as if they are taking away some right.

[ericschand]

Originally Posted by Shazam

In the meantime, don't talk to cops! This is why everybody needs to have a course taught by a lawyer.

They've removed that though. You can be held for long periods of time without the "right to remain silent." Aside from no lawyer present, they can ask you anything they want, say anything they want, and break you down until you tell them what they want to hear. In the one case that went to the SCoC they questioned him for 5 hours even when he asked for a lawyer and asked not to be questioned.

You know, if it's so cut and dry as Naza and Coys seem to indicate, where once you are brought in you must be guilty, then why did that school teacher have to go through a trial for child molestation? In the trial it came out that the video camera of the hallway where it supposedly occurred, the video didn't show anything! Other kids at the school supported him and said that the 2 girls made up the story! Yet he was still arrested and prosecuted. And then found not guilty. [His life is still a mess, but that's another topic]

CBC News

But hey, why afford him access to a lawyer, and why allow him to remain silent? After all, he was arrested so he must be guilty. And it was child molestation, so that makes it doubleplusgood. Just put him away, because that way other true criminals won't go free, right? Nothing wrong with a few token non-guilty people in jail after all, am I right?

Waza and Coys won't care until it's them in the interrogation room. Then they'll whine how unfair it is. Just like those in Arizona who support the "suspected immigrants must show papers" law. Wait till the police there catch on that if they can't get you on the traffic stop, can't get you on a drug search, but wait, they can get you on..."Hey, you seem suspicious when talking about 'merica! Show me your papers! Oh you don't have anything, well off to jail for the night for you!" Then you'll see the whining.

ers

[Shazam]

Just close your eyes, lay back and fall asleep.

[GGG]

One part of the ruling I do agree with is the right not to contact your specific attourny. In DUI cases one way to get out of one was to contact your lawyer. Your lawyer being unavailable as it is the middle of the night they couldn't charge you with refusal to submit a breath sample. This ruling permits them to provide you with access to any lawyer if your lawyer is not available.

If the police could be trusted into not badgering the suspect into confessing than this law would likely be okay. If standards of what was acceptable during interrigation were very strict such as no yelling, threatening, repeating questions and maximum interagation times there likely would be no need for having a lawyer present.

So if all interviews are video tapes and judges through out any confessions that broke ethical rules then you might be okay. But as long as the Police to have the right to threaten you and attack you for hours you should have the right to protection.

[Nage Waza]

Originally Posted by HeartsOfFire

Odds are irrelevant. The fact that it HAS happened alone proves that the sacrifice of any personal freedoms or liberties is not worth the added security.

What a joke. We have people getting killed in other countries to defend our freedoms. We have people living on the streets in our own cities. Kids without homes as well. And here you are complaining about sacrifice of personal freedoms.

Get over it.

[Nage Waza]

After reading some of the posts, I have to ask:

Since so many of you seem suspicious of the police, how many of you are suspicious of lawyers? You guys seem to think they are the defenders of our liberty or something like that. I am sure that for every so called bad cop that is going to brutalize you there are dozens of lawyers waiting to take every dime you have. Just like dishonest mechanics, bankers, investors and real estate agents, you get what you pay for and sometimes you don't

[Shazam]

Originally Posted by Nage Waza

After reading some of the posts, I have to ask:

Since so many of you seem suspicious of the police, how many of you are suspicious of lawyers? You guys seem to think they are the defenders of our liberty or something like that. I am sure that for every so called bad cop that is going to brutalize you there are dozens of lawyers waiting to take every dime you have. Just like dishonest mechanics, bankers, investors and real estate agents, you get what you pay for and sometimes you don't

Basic econ and poen should be mandatory at universities. The downside would be that half the threads on here would vanish.

What's fiduciary duty?

[valo403]

Originally Posted by Nage Waza

After reading some of the posts, I have to ask:

Since so many of you seem suspicious of the police, how many of you are suspicious of lawyers? You guys seem to think they are the defenders of our liberty or something like that. I am sure that for every so called bad cop that is going to brutalize you there are dozens of lawyers waiting to take every dime you have. Just like dishonest mechanics, bankers, investors and real estate agents, you get what you pay for and sometimes you don't

Why would you be suspicious of a lawyer that you are paying to defend your rights? They might not be the best lawyer, but suspicious?

And you seem to not grasp that the lawyers filing civil suits, who you apparently think are suck crooked people, and those involved in defending you are not the same people.

[transplant99]

Originally Posted by Nage Waza

You said nothing in your post and I have no idea what you were talking about. Read your post and help me figure out what it is that you are talking about.

nah...I'd rather leave you in limbo.

[icarus]

I agree with the dissenting reasons of LeBel and Fish JJ. A layman unversed with the law must have access to someone who can effectively explain his constitutionally protected rights, including his right not to incriminate himself to those agents charged with building a case against him.

[HeartsOfFire]

Originally Posted by Nage Waza

What a joke. We have people getting killed in other countries to defend our freedoms. We have people living on the streets in our own cities. Kids without homes as well. And here you are complaining about sacrifice of personal freedoms.

Get over it.

Our soldiers fighting for Canada -- and if not all, most of the Western World -- all signed up for that line of work when they volunteered or enlisted. They volunteered to go to hell so that people like me wouldn't have to. And for that, they have my utmost respect.

Liberty and Security are as bipolar as Conservative and Liberal. Societies that place a high value on personal freedoms are the easiest to attack from within. That is a fact. But given the realistic probability of actual danger coming to myself in this city, this country, I'm okay with that. If I truly was afraid to leave my apartment for fear that someone my rob me, I would buy a gun.

We are very lucky in this side of the world to have never endured real war in our time. Never in the modern age have enemy nations had troops set foot on our soil. We have never been bombed, forced to evacuate, or had to dig ourselves out of collapsed buildings. This leaves most of our citizens with a jaded sense of reality, and only when reality wickedly slaps us across the face (9/11) does it really hit home how unfamiliar we are with war.

I recognize that if there was absolutely no security in place for fear that it would hinder our personal freedoms, we would surely have been devastated by terrorism by now. I understand that there is a reason for security checkpoints in airports and borders. What I cannot abide is the blind willingness to give up any right or liberty without first asking why, and carefully considering the worth vs the detriment in allowing any liberty to be taken away.

During the course of this thread it has come to my attention that this Supreme Court ruling has in fact not changed anything, but maintained the status quo. This was news to me. I was unaware that in Canada we do not have the right to have an attorney present while being interrogated by Law Enforcement. I am aware now, and I am also sickened by it. But better on me for knowing now. The average citizen truly has no idea what their rights are when being investigated by law enforcement. Irresponsible.

If ever my government were to come to me and ask me to give up any freedom, no matter how frivolous, my first question would always be 'why?' There had better be an answer, and it had better be a good one. And 'For security reasons' on its own is not good enough.

[valo403]

Originally Posted by Nage Waza

Sacrifice what rights? Why do you keep dragging this out? No rights have been removed, so we are not talking about 'sacrificing' rights. Status quo is where we are at. Quit talking as if they are taking away some right.

Ah so it's maintenance of the staus quo that makes this okay. So I assume you're against the right of women to vote, after all that was a step to fix an injustice that was present in the legal/rights system at a certain point in time.

I would love, but don't actually expect, a response to the question of what exactly is lost by allowing counsel to be present at the questioning phase. What's the harm? Anyone? Bueller?

[transplant99]

Originally Posted by valo403

Ah so it's maintenance of the staus quo that makes this okay. So I assume you're against the right of women to vote, after all that was a step to fix an injustice that was present in the legal/rights system at a certain point in time.

I would love, but don't actually expect, a response to the question of what exactly is lost by allowing counsel to be present at the questioning phase. What's the harm? Anyone? Bueller?

That's what it boils down to for me as well. Where is the problem with allowing citizens to seek counsel when being questioned? What is the end game on part of the police? So that a judge somewhere down the line gets to determine if coercion was used or not? How about we just eliminate that possibility from the get go?

Intimidation is real tactic used by law enforcement, no one can question that. Whether or not one should be forced to be subjected to it (should it be used) is not something a free society should even have to consider IMO. LE has all the resources, experience, and tactics it needs to properly investigate crimes and determine who did it.

Average joe has ONE way to defend himself, through the use of an attorney who is the expert on what the police already know/do/use. Allow him to use that as he sees fit, and IMO that begins the second a cop starts asking questions.

[Resolute 14]

Originally Posted by valo403

Ah so it's maintenance of the staus quo that makes this okay. So I assume you're against the right of women to vote, after all that was a step to fix an injustice that was present in the legal/rights system at a certain point in time.

C'mon Valo, you don't have to build strawmen to attack. Nage is rather naive in his belief that innocence will be proven innocent, but he is absolutely right in stating that this ruling has "sacrificed" no right, no matter how hard Tranny tries to argue otherwise.

As far as universal suffrage goes, it was the democratically elected Parliament/Congress that granted it to Canadian and American women, not the courts. In this case, it should also be Parliament that adds this right, not the courts. The courts should never, under any circumstances, create law. Ever. If the charter does not presently include statements that can be reasonably interpreted to grant such a right, the court has no choice but to accept that. The onus is on the government to fix this gap, and by extension, the people that elect them.

[valo403]

Originally Posted by Resolute 14

C'mon Valo, you don't have to build strawmen to attack. Nage is rather naive in his belief that innocence will be proven innocent, but he is absolutely right in stating that this ruling has "sacrificed" no right, no matter how hard Tranny tries to argue otherwise.

As far as universal suffrage goes, it was the democratically elected Parliament/Congress that granted it to Canadian and American women, not the courts. In this case, it should also be Parliament that adds this right, not the courts. The courts should never, under any circumstances, create law. Ever. If the charter does not presently include statements that can be reasonably interpreted to grant such a right, the court has no choice but to accept that. The onus is on the government to fix this gap, and by extension, the people that elect them.

I agree with all that, I was just latching on to his apparent argument that this is all well and good as it's just preservation of the status quo. My point was really just intended to demonstrate that maintenance of the status quo can be just as harmful as the removal of an enshrined right.

[transplant99]

stating that this ruling has "sacrificed" no right, no matter how hard Tranny tries to argue otherwise

Got the worng guy here.

I never said anything of the sort, but i am stating it is a right that any accused should have...i wasn't even aware you couldn't have council in Canada until this thread appeared.

[flylock shox]

There are arguments both ways here. It ultimately comes down to how the balance should be struck between protecting the rights of individuals, and empowering police to solve crimes. Society has an enormous interest in both.

To suggest that the current state of the law (as supported by this ruling) allows police to abuse their investigative powers by coercing or forcing confessions is not accurate however. From the headnotes of the majority decision in Sinclair:

This interpretation of s. 10(b) does not give carte blanche to the police as contended. This argument overlooks the requirement that confessions must be voluntary in the broad sense now recognized by the law. The police must not only fulfill their obligations under s. 10(b), they must conduct the interview in strict conformity with the confessions rule. In defining the contours of the s. 7 right to silence and related Charter rights, however, consideration must also be given to the societal interest in the investigation and solving of crimes. Any suggestion that the questioning of a suspect, in and of itself, runs counter to the presumption of innocence and the protection against self‑incrimination is clearly contrary to settled authority and practice. The police are charged with the duty to investigate alleged crimes and, in performing this duty, they necessarily 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.

Nage has suggested that an innocent person would have nothing to fear from a police interrogation. This is not entirely true in the broad sense, but it is much more reasonable in the more narrow context of police interviews in Canada with the current state of the law as described in this decision.

For example, how would the police get a confession from someone who is innocent? It's hard to imagine any circumstance in which they could do so without violating the confessions rule, i.e., coercion, inducement, or a witness operating under some mental impairment. So the danger of a false conviction is not as great as some might make it out to be.

By contrast, how would the police get a confession from someone who is guilty? That can be done without coercion, inducement, or an impaired mental state. It could simply emerge from the types of investigative questioning techniques that were used in these companion cases. In short, good strategies for probing witnesses and obtaining information from them without violating the confessions rule.

So the balance the SCC has struck here allows for police interrogation because there are existing protections in the law relating to how those interrogations must be conducted - protections that are more likely to protect the innocent, and less likely to protect the guilty.