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

[Rathji]

Originally Posted by transplant99

This confuses me. i do think, however, you are missing my point. I am saying any suspect should have the right to be advised by an attornet to talk if they so choose, but not talk if they so choose...and KNOW they have the right not to talk.

As mentioned in my last post, quoting the Wiki on Miranda Rights, they can talk to a lawyer and have the ability to do so, but he doesn't need to be physically present.

you cant refeuse a breathalyzer now under the guise of waiting for an attorney. This isnt an argument at all.

As I understand it, this is partially, if not completely because you don't need a lawyer present to for the police to collect evidence, which is what you are arguing against. If I am wrong, and it is based on another precedent entirely then I withdraw that argument.

Suspect is in custody I assume? So yes, the suspect would likely love to wait a couple days to know what they can and cannot do.

The suspect can talk to a lawyer to find that out. Even if it is not their lawyer.

What? Justice is not dispensed in an interrogation room..that all happens in a court room. No idea what you mean here.

The justice process is the entire process from when the crime is reported until a convicted person completes his sentence. It is delayed if the investigation is delayed. You can't have a trial (or in most cases be charged) until the investigation is complete. You have, and so you should, the right to not be held without trial.

[Rathji]

Originally Posted by HeartsOfFire

Not being obliged to say anything means that one has the Right to remain silent.

Ok, that I will concede. Really it is semantics though. Legally they mean 2 slightly different things, but in the course of this discussion I am sure we can agree they mean similar enough things.

And I am not arguing any of that. I am arguing that anything you have said before being advised of your Rights is inadmissable

I don't think it is automatically inadmissible, I suspect that it is up to the discretion of the judge in the case, based on precedent. I would have to look that up to be sure though.

[flylock shox]

A couple of points:

In addition to informing an arrested/detained person of his rights to speak to a lawyer, the police must also provide that person with a reasonable opportunity to speak to a lawyer. This does not necessarily mean the lawyer of the person's choice, although that would usually be the first lawyer contacted. If that lawyer is unavailable, the person will be given the opportunity to speak to alternative counsel, most often duty counsel, which may happen either in person or by phone. Once the consultation has occurred, and the person expresses satisfaction with his consultation and an understanding of his rights, the police may proceed with an interrogation without counsel present, and without allowing further consultations with counsel (absent a change in circumstances of the kind described by the SCC and referred to in my earlier posts).

In terms of what evidence can be used against a suspect, any relevant admissible evidence may be used. The question of admissibility depends on the facts - in the case of statements made by the suspect, admissibility depends on how and when the statements were made. Some statements made prior to a person being informed of their rights are admissible.

For example, imagine a police officer responds to a 911 call from an old lady, reporting screaming and crashing sounds at her neighbour's house. A police officer arrives at the scene, goes to the door of the house, and knocks. A man answers the door, and the police officer says "Is everything alright here sir?" To which the man responds, "I didn't mean to hit her so hard. I was just so angry. I think I might have killed her."

In those circumstances, the statement will be admissible. The man was not a suspect, was not detained or arrested, at the time the statement was made. No Charter rights were breached, and the statement is relevant evidence.

By contrast, if the police officer then asks the man exactly what happened, or asks him to re-enact the scene, and does so without first informing the man of his rights to counsel, then the subsequent statements or re-enactment would likely be inadmissible. This is because the man is now clearly a suspect in the investigation, rather than a mere witness.

[Titan]

I just wanted to commend the posters in this thread for thoughtful, detailed posts. Very well done. Its almost like its not the internet!

[HeartsOfFire]

The average Internet forum ^^^^



CalgaryPuck forums

[jar_e]

Originally Posted by flylock shox

By contrast, if the police officer then asks the man exactly what happened, or asks him to re-enact the scene, and does so without first informing the man of his rights to counsel, then the subsequent statements or re-enactment would likely be inadmissible. This is because the man is now clearly a suspect in the investigation, rather than a mere witness.

There is always the out that charter breaches can be disregarded if it "puts the law into disrepute".

[flylock shox]

Originally Posted by jar_e

There is always the out that charter breaches can be disregarded if it "puts the law into disrepute".

This is true, the court does retain that discretion. However, I would suggest that judges tend to take a dim view of police misconduct, and I think Average Joe would find many more instances of the law being brought into disrepute (in Average Joe's opinion) by the exclusion of evidence as opposed to its admission.

It is not unusual that someone who is clearly guilty is set free because of the way in which the evidence against him was obtained (regardless of the fact the Charter breach did not 'create' the evidence as such).

But the alternative, of course, would lead to a slippery slope indeed.

[maverickeastwood]

Good thread!

[jar_e]

Originally Posted by flylock shox

This is true, the court does retain that discretion. However, I would suggest that judges tend to take a dim view of police misconduct, and I think Average Joe would find many more instances of the law being brought into disrepute (in Average Joe's opinion) by the exclusion of evidence as opposed to its admission.

It is not unusual that someone who is clearly guilty is set free because of the way in which the evidence against him was obtained (regardless of the fact the Charter breach did not 'create' the evidence as such).

But the alternative, of course, would lead to a slippery slope indeed.

Yeah I can't say I've heard of many cases where a judge has played that card...its more grounds for the defense to articulate a charter breach.