Miranda in Canada

January 28, 2011

Last weekend, a group of friends spent an evening sipping and talking from our hats. Somewhere in the middle of a string of friendly port-accompanied arguments, the Canadian equivalent of the “Miranda Rights” came up. (How this came up is lost in a fog).
The following brief, written during a typical lull at work, is alarming. It is also oddly unhelpful in a practical sense. Understanding and insisting on your Miranda Rights is useful if ever arrested in the US… it is less clear the utility of knowing that you have no such rights here.

Finally, it is odd for being the only thing I know of which is more frightening about the Canadian police (hardly angels to be frank), as opposed to their American comrades.  Put in other words:  that Canadian police have the right to act in a manner even worse than those in the US, should make Canadians not only nervous but also deeply embarrassed.


In the briefest of summaries:

The Supreme Court (Canada) ruled on a trio of cases in 2010. According to a 5:4 decision:
As ruled in R. v Bryden (1990), detainees have a right to “a single consultation’ with a lawyer prior to being interrogated, and must be informed of that right. This right, however, is “one-time-matter”. After that first phone-call, they have no right to any further contact with a lawyer. (There are three exceptions, see below).

After that initial phone-call, the detainee’s right expires

A detainee may be interrogated (without any defined time limit) without being allowed to re-contact a lawyer for further advice… let alone insisting on having a lawyer present.
A detainee, of course, may refuse to speak to police at all… but he must do so despite any pressure the police wish to apply, and must consider the risk that remaining silent will “look” very bad if they must be defended in court.

Illustrations: a little about two of the three 2010 Supreme Court Cases

(1) The court refused to overturn the conviction of Mr. McCrimmon (convicted of eight sexual assaults).
Prior to his interrogation, McCrimmon was unable to reach his chosen lawyer by telephone. Instead, he was allowed a brief discussion with legal-aid/duty-counsel. During the ensuing interrogation, McCimmon repeatedly asked to be able to have more assistance of a lawyer and to have a lawyer present. Police denied his requests.

(2) The court refused to overturn the conviction of Mr. Sinclair (convicted of manslaughter).
After being arrested, he was advised of his rights and spoke to a lawyer twice, each time for about three minutes.
He was then interrogated for about five hours. During the interrogation, Sinclair told police five times that he wanted his lawyer to be present. Police told him that he had no such right, and resumed the interrogation.
Sinclair ended up giving an implicating statement during the interrogation.


There are three types of situations in which a detainee DOES have the right to re-contact legal counsel:
(a) If the police wish to use “non-routine procedures, including participating in a line-up or submitting to a polygraph, which do not generally fall within the expectation of the advising lawyer at the time of initial consultation”
(b) Changes in jeopardy. [if police make any changes to the detainee is accused of]
(c) If the police should reasonably doubt a detainee’s understanding of their right to contact a lawyer prior to being interrogated, he/she must be advised of this right again.

here’s a tip kids: the use of gradually revealing (actual or fake) evidence
”The common police tactic of gradually revealing (actual or fake) evidence to a detainee to demonstrate or exaggerate the strength of their case does not automatically trigger the right to a second consultation, giving rise to renewed s.10(b) rights.
and another tip: why the police might choose to allow a detainee to contact a lawyer more than once
Police are certainly permitted to choose to allow the presence of a lawyer interrogation.
“There is, of course, nothing to prevent counsel from being present at an interrogation where all sides consent, as already occurs. The police remain free to facilitate such an arrangement if they so choose”  (from majority decision, written by justice Charron, R. v Sinclair) (emphasis added)
The same majority opinion pointed out that “police may allow any number of further consultations, perhaps even using this as a technique to reassure a detainee that further access will be available if needed.”  (emphasis added)

from the dissenting opinion
(written by justice Binnie, on behalf of the four dissenting judges)
“What now appears to be licensed is that a presumed innocent individual may be detained and isolated by the police for at least five or six hours without reasonable recourse to a lawyer – during which time the officers can brush aside assertions of the right to silence or demands to be returned to his or her cell in an endurance contest in which the police interrogators, taking turns with one another, hold all the important legal cards,..”  (emphasis added)

one last bit from the majority opinion
“…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.”  (justice Charron)


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