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

[transplant99]

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.

Absolutely....but here is the rub. Law enforcement does do that. They do break the rules in pursuit of who they think is guilty (not always but numerous examples). And who is it that investigates them if the accusation is brought up? Other law enforcement, and that is a really hard pill to swallow and believe they will be neutral when it comes to deciding.

Then the judge gets to decide based on evidence presented to him from both those parties and a single person accused that had no representation when it was supposed to have occurred. That is a massive problem in my mind. Where is the equality in that?

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.

One question...how does any of that change if a lawyer is present?

[Nage Waza]

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?

Wow, the personel attacks keep getting weaker and weaker. Now I am against the right of women to vote? Where do you guys come up with this stuff!

I would answer any question, why don't you expect one? My record on this site has always to respond, I rarely get responses back from my questions.

What is lost by allowing counsel to be present at the questioning phase? Well right now they are not allowed, and since I think police need more tools to lock people up and catch the criminals, than I think anything that makes their job harder should not be done. And before the attacks start, I mean harder as in things that inhibit them from doing their job. If not having a lawyer present makes it easier to interogate, than I am all for it.

[flylock shox]

Originally Posted by transplant99

Absolutely....but here is the rub. Law enforcement does do that. They do break the rules in pursuit of who they think is guilty (not always but numerous examples). And who is it that investigates them if the accusation is brought up? Other law enforcement, and that is a really hard pill to swallow and believe they will be neutral when it comes to deciding.

Then the judge gets to decide based on evidence presented to him from both those parties and a single person accused that had no representation when it was supposed to have occurred. That is a massive problem in my mind. Where is the equality in that?

This seems to be tangential to the issue at hand. Yes: the police do break the rules of investigation/interrogation frequently. But the issue of who investigates the police in such circumstances has no bearing on the main question here, which is the consequences for the person being investigated/interrogated. Police interrogations are recorded (with the exception of very basic questioning that commonly occurs of witnesses at the fresh scene of a crime) and are reviewed by prosecutors for admissibility before they are ever even forwarded to defence counsel or presented to the court. So any problems with the interrogation can be brought to light and dealt with at multiple stages in the process: prosecutor file review, defence file review after disclosure, judicial review in the course of the trial process, or in the course of the case for the defence at trial.

One question...how does any of that change if a lawyer is present?

This, to me, is the better question. And I think the answer is fairly simple: because any lawyer will simply tell his client to say absolutely nothing. The only exception to this would be if the lawyer has reviewed all available evidence and is satisfied his client is in no legal jeopardy if he cooperates with the police. Such situations are likely to occur only late in the course of the legal process if at all, particular where a person is clearly a suspect and not a mere witness. Waiting for such a situation would, of course, hamper the ongoing investigation, possibly to a similar degree as a suspect/witness saying absolutely nothing to police.

[transplant99]

And I think the answer is fairly simple: because any lawyer will simply tell his client to say absolutely nothing.

Which people have the right to do now...I just think they should be aware of that right and the only way to know for sure they do ( unless told by police?) is for them to be councilled as such....therefor allowing them a lawyer in interrogation (or before would work as well...is that the case?)

[flylock shox]

Originally Posted by transplant99

Which people have the right to do now...I just think they should be aware of that right and the only way to know for sure they do ( unless told by police?) is for them to be councilled as such....therefor allowing them a lawyer in interrogation (or before would work as well...is that the case?)

The police must inform them upon detention/arrest of their right to seek and instruct counsel without delay. If the police fail to do this they will have violated the suspect's Charter rights, and the court will almost certainly remedy such a violation by throwing out any evidence that flows from that violation (including any evidence from a subsequent interrogation).

What typically happens - and what happened in these cases - is that the police informed the person of their right to counsel, the person spoke with counsel who told them "for the love of God, don't say anything, no matter what the police say to you," and then the police continued with an interrogation of the person without counsel present.

Multiple times in the course of these interrogations the person involved said "I don't have to say anything to you, I don't want to cooperate with your investigation, I want to speak with my lawyer," to which the police said "that's right, you don't have to say anything to us, you don't have to cooperate, but you have no right to have a lawyer with you during an interrogation and we're not agreeing to let you have one."

According to the SCC, this is all kosher.

An issue does arise, however, when the person's circumstances change during the course of the investigation, necessitating another consultation with counsel. As the SCC puts it:

A request to consult counsel, without more, is not sufficient to re‑trigger the s. 10(b) right. What is required is a change in circumstances that suggests that the choice faced by the detainee has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b).

As to what constitutes a sufficient change of circumstances will vary on the facts of the individual case. In this case, for example, Mr. Justice Binnie was of the view that there had been a change in circumstance requiring a new consultation with counsel:

In this case, the initial refusal to allow S to consult further with his counsel did not constitute a Charter breach. The breach occurred when after several hours or so of suggestions (subtle and not so subtle) and argument the officer confronted S with evidence linking him to the crime and S repeated five times his desire to consult with his counsel before going further. Police use of moral suasion is, of course, absolutely acceptable, but S was clearly concerned (manifested by his five separate requests to consult his lawyer again) whether the lawyer’s initial advice (whatever it was) remained valid. S faced a second degree murder charge. It cannot reasonably be said that the 360 seconds of legal advice he received in two initial phone calls before the police began their interrogation was enough to exhaust his s. 10(b) guarantee. Given the unfolding of new information up to that point in the interview, S’s request to speak again to counsel was reasonable, and the police refusal of that further consultation was a breach of s. 10(b).

And this, in my opinion, is where the law gets interesting...

[valo403]

Originally Posted by 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:



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.

Edit: Didn't see your posts on the next page.

[valo403]

Originally Posted by Nage Waza

Wow, the personel attacks keep getting weaker and weaker. Now I am against the right of women to vote? Where do you guys come up with this stuff!

I would answer any question, why don't you expect one? My record on this site has always to respond, I rarely get responses back from my questions.

What is lost by allowing counsel to be present at the questioning phase? Well right now they are not allowed, and since I think police need more tools to lock people up and catch the criminals, than I think anything that makes their job harder should not be done. And before the attacks start, I mean harder as in things that inhibit them from doing their job. If not having a lawyer present makes it easier to interogate, than I am all for it.

Please point out the "personel attack"

[Nage Waza]

Originally Posted by valo403

Please point out the "personel attack"

So you too have signed up to be the site's proof reader? This is what you do when faced with the reality that your accusations and insults are not productive nor approved by many of the readers of this site?

Just because someone has a difference in opinion on a subject does not mean they fit into some preconceived mold in your head. Everyone is different and has a different background that may not match your own.

A fairly standard disagreement on an aspect of Canadian law resulted in you claiming that I did not support a woman's right to vote, and then you switch it up to attack my spelling. Typical. Is this what you think is right? Is it just? For such an advocate of our 'freedoms' you certainly don't care about truth.

[valo403]

Originally Posted by Nage Waza

So you too have signed up to be the site's proof reader? This is what you do when faced with the reality that your accusations and insults are not productive nor approved by many of the readers of this site?

Just because someone has a difference in opinion on a subject does not mean they fit into some preconceived mold in your head. Everyone is different and has a different background that may not match your own.

A fairly standard disagreement on an aspect of Canadian law resulted in you claiming that I did not support a woman's right to vote, and then you switch it up to attack my spelling. Typical. Is this what you think is right? Is it just? For such an advocate of our 'freedoms' you certainly don't care about truth.

1. I didn't attack your spelling, I accurately quoted you.

2. Where are the accusations and insults? Seriously, point them out. Apparently the reference to women's suffrage went over your head, despite the fact that I spelled it out blatantly a few posts later (I thought it was pretty clear to begin with actually). It's simply a reference to the fact that maintenance of status quo can be just as harmful as the removal of an enshrined right. A rather over the top way of making the point? Sure, but this is the internet after all.

[Rathji]

Originally Posted by transplant99

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.

IANAL, but from my crim courses I think you are misunderstanding the law. You can ask for and receive council before being interviewed by law enforcement personnel. The one thing you can't do is be protected from saying something to incriminate yourself before you receive that council.

This of course means that the police don't have to wait until your lawyer gets there to collect evidence or record your statement, among other things. I am pretty sure you still have the ability not to say anything until you feel you have been properly counseled.

I also think that it was mentioned in my courses that even though police have the ability to interrogate without counsel present, it happen as the exception rather than the rule, and mostly in cases where there is a physical inability of the lawyer to be present. For example, long travel times etc.

[HeartsOfFire]

Originally Posted by Rathji

IANAL, but from my crim courses I think you are misunderstanding the law. You can ask for and receive council before being interviewed by law enforcement personnel. The one thing you can't do is be protected from saying something to incriminate yourself before you receive that council.

Yes and no.

Up until you've been read your rights and you acknowledge that you understand them, nothing you say up to that point can be used against you in court because it is inadmissable.

After you've been read your rights and you acknowledge that you understand those rights, anything is fair game.

[Rathji]

Originally Posted by HeartsOfFire

Yes and no.

Up until you've been read your rights and you acknowledge that you understand them, nothing you say up to that point can be used against you in court because it is inadmissable.

After you've been read your rights and you acknowledge that you understand those rights, anything is fair game.

Those are Miranda rights I assume you are referring to, and in Canada we do not have them. Anything you say to police at anytime can be used against you in a court of law.

That is essentially the whole point of this thread, is that the ruling maintained the absence of those rights.

[transplant99]

You can ask for and receive council before being interviewed by law enforcement personnel.

This of course means that the police don't have to wait until your lawyer gets there to collect evidence or record your statement

And that is what I have a massive problem with.

In what other circumstance in any facet of life in Canada, can you be refused expert advice, and where could it possibly be more important to an individual than in this situation?

That should be a right that everyone receives, and is the crux of thsi whole argument. Too many things can go wrong when you dont have the ability to ask experts in any field that matters.

A cop says, "OK you can call your attorney"...you call and find out that he is unavailable for 3 days as he out in BC with his girlfriend and is not or can not be contacted. So now the cop says, "too bad I am gonna grill you for 6 hours straight and coerce you to tell me things", if the accused doesnt know he has the right not to say anything as advised by an attorney, it opens up the possibility of things being done innappropriately. Allowing a lawyer in removes ALL that stuff. Simple.

[HeartsOfFire]

We have similar rights under the Charter, but they're not called Miranda Rights.

Upon being arrested, any Canadian has the right:

to be informed promptly of the reasons therefor;
to retain and instruct counsel without delay and be informed of that right;
to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Additionally, they must then be notified that they have the right to remain silent, but that anything they say may be given as evidence. Say is the operative word. No mention of anything a person has said up until that point.

Because, just as in the States, we have the right to not be a witness in a proceeding against ourselves (layman's terms, self-incrimination), even if we do incriminate ourselves before acknowledging that we understand our rights, the incrimination can be tossed out as inadmissable.

Assuming I understand this correctly.

http://en.wikipedia.org/wiki/Miranda_Rights#Canada

Oh! And additionally, if you invoke your right to prompt legal counsel, law enforcement in Canada DOES have to stop their investigation into your role in the crime to allow you sufficient time to contact your counsel.

[Rathji]

Originally Posted by transplant99

And that is what I have a massive problem with.

In what other circumstance in any facet of life in Canada, can you be refused expert advice, and where could it possibly be more important to an individual than in this situation?

That should be a right that everyone receives, and is the crux of thsi whole argument. Too many things can go wrong when you dont have the ability to ask experts in any field that matters.

A cop says, "OK you can call your attorney"...you call and find out that he is unavailable for 3 days as he out in BC with his girlfriend and is not or can not be contacted. So now the cop says, "too bad I am gonna grill you for 6 hours straight and coerce you to tell me things", if the accused doesnt know he has the right not to say anything as advised by an attorney, it opens up the possibility of things being done innappropriately. Allowing a lawyer in removes ALL that stuff. Simple.

Thats the thing, he DOESN'T have the right to not say anything until an attorney is present. Of course as a human being, he has the ability to choose not to talk. Its not like they strap him to a torture machine or pull out the car battery and jumper cables.

So you would rather the justice system be stalled for 3+ days because the lawyer you wanted was out of town, and you didn't want the lawyer that was standing across the hall or in his office down the street? You would rather give people driving under the influence the ability to refuse a Breathalyzer until their lawyer got there, and they were sober?

What if you lived in a remote area of the NWT, and every time a suspect needed to be interviewed you needed to wait 2-3 days for a lawyer to get there? you want those people held in jail, until someone is able to come, denying them the right to have justice dispensed quickly?

I am not saying that there wouldn't be justifiable advantages to having that right, I am just pointing out that it isn't as black and white as you think it is.

[transplant99]

Thats the thing, he DOESN'T have the right to say anything until an attorney is present.

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.

So you would rather the justice system be stalled for 3+ days because the lawyer you wanted was out of town, and you didn't want the lawyer that was standing across the hall or in his office down the street?

No...didnt say that at all. I want the suspect however to be aware of what their rights are and are not. What if there is a lawyer available, but cant make it to see the suspect for 3 hours...cop says, "thats too long we are talking now". What's the hurry? Why is imperative to talk now? Why can't there be a lawyer assigned at all times for the purpose of advising suspect at all times?

You would rather give people driving under the influence the ability to refuse a Breathalyzer until their lawyer got there, and they were sober?

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

What if you lived in a remote area of the NWT, and every time a suspect needed to be interviewed you needed to wait 2-3 days for a lawyer to get there

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.

denying them the right to have justice dispensed quickly?

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

I am just pointing out that it isn't as black and white as you think it is.

Says the guy that stated,

if I am innocent, then the truth will set me free

And what do colors have to do with anything?

[Rathji]

Originally Posted by HeartsOfFire

We have similar rights under the Charter, but they're not called Miranda Rights.

Upon being arrested, any Canadian has the right:

to be informed promptly of the reasons therefor;
to retain and instruct counsel without delay and be informed of that right;
to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Additionally, they must then be notified that they have the right to remain silent, but that anything they say may be given as evidence. Say is the operative word. No mention of anything a person has said up until that point.

Because, just as in the States, we have the right to not be a witness in a proceeding against ourselves (layman's terms, self-incrimination), even if we do incriminate ourselves before acknowledging that we understand our rights, the incrimination can be tossed out as inadmissable.

Assuming I understand this correctly.

http://en.wikipedia.org/wiki/Miranda_Rights#Canada

Oh! And additionally, if you invoke your right to prompt legal counsel, law enforcement in Canada DOES have to stop their investigation into your role in the crime to allow you sufficient time to contact your counsel.

From your Wiki link:

A more detailed version: "I am arresting you for (charge). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You may call any lawyer you want. There is a 24-hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and the lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with a telephone number. Do you understand? Do you want to call a lawyer? You are not obliged to say anything, but anything you do say may be given in evidence."

No where there does it say he has the right to remain silent.

It does say in there that anything you say will be given in evidence if you choose to say something.

It does say you have the ability to contact a lawyer, but implies that a lawyer doesn't need to be present for what you say to be admissible in court. This means your lawyer can inform you not to say anything, but if you choose to ignore him the evidence will be admissible. If you are not given the ability to contact counsel, the evidence likely will be inadmissible, but doesn't automatically need to be. From my courses, I understand that any evidence given under duress will be deemed inadmissible by the justice. I could probably find the precedents if it really mattered.

[HeartsOfFire]

Originally Posted by transplant99

What if there is a lawyer available, but cant make it to see the suspect for 3 hours...cop says, "thats too long we are talking now". What's the hurry? Why is imperative to talk now?

The only time I could see this happening is if the suspect is aware of the location of a bound and helpless kidnapping victim that is quickly running short on oxygen. Or any other similar situation where a victim's life hangs in the balance.

Mind you, at that point the suspect could stall until the victim suffocates... but that would add murder to their charges, so that would be pretty stupid.

[transplant99]

Additionally, they must then be notified that they have the right to remain silent

fine by me..as long as that is asked and the suspect acknowledges they understand it.

[HeartsOfFire]

Originally Posted by Rathji

From your Wiki link:



No where there does it say he has the right to remain silent.

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

It does say in there that anything you say will be given in evidence if you choose to say something.

It does say you have the ability to contact a lawyer, but implies that a lawyer doesn't need to be present for what you say to be admissible in court. This means your lawyer can inform you not to say anything, but if you choose to ignore him the evidence will be admissible. If you are not given the ability to contact counsel, the evidence likely will be inadmissible, but doesn't automatically need to be. From my courses, I understand that any evidence given under duress will be deemed inadmissible by the justice. I could probably find the precedents if it really mattered.

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