http://www.theglobeandmail.com/news...rrogation-supreme-court-rules/article1749557/
What a fucking disgrace.
What a fucking disgrace.
No right to a lawyer during interrogation, Supreme Court rules
- Thread starter djk
- Start date
Just keep cool and say "I'm invoking my charter rights to a lawyer." Take the pledge of non-communication and go on a hunger strike too. Tell them that you're a politicial refugee and need asylum.
Just don't ask them if their mother knew their father, that could turn not-so-good for you.
Just don't ask them if their mother knew their father, that could turn not-so-good for you.
Just keep cool and say "I'm invoking my charter rights to a lawyer." Take the pledge of non-communication and go on a hunger strike too. Tell them that you're a politicial refugee and need asylum.
Just don't ask them if their mother knew their father, that could turn not-so-good for you.
5 magic words: I. Have. NOTHING. To. Say.
Say it firmly, repeatedly & respectfully. They're just people doing their job... Unfortunately their job is to do shit that could ruin your life bet even so it's good to keep things professional.
Any communications to the cops should go THROUGH a lawyer... Not simply with one present. The only thing they should hear in your voice is the 5 words. Period. The only other time is if it gets to trial & it's decided that you should testify on the stand....
ANYone who ever says ANYthing else to a cop is a sucker & WILL get fucked over if at all possible... Guilty or ESPECIALLY if you're innocent..
Specifically you do NOT have a right to have counsel present during questioning, although it's not forbidden either--it could be agreed to, say in exchange for agreeing to be co-operative. But you do not have a right. I would assume you still have a right to sit there and keep your mouth shut, so your stick for getting counsel into questioning would presumably be "I'm saying nothing without a lawyer present" and they can ask away and you can stare back in silence. If you DO talk, though, then what you say can be used.From the article in The Daily Mail it is difficult to tell, has the SCC stated whether one has the right to have counsel present during questioning?
The court was explicit that it believes transplanting this concept from American law to Canadian law would be inappropriate because Canada provides a different set of checks and balances than American law does. I haven't read the details of the judgement but I intend to because I'd like to see the explanation. The quote in the article hinted that the justices believe the Miranda rights were to shore up other weaknesses in the American system that Canada does not have, and therefore Canada does not need to shore up. When I have time I'd like to understand their view on that in more detail.
Hard advice to heed, but basicly never answer any questions.From what I've read you still have a right to talk to your lawyer before you answer any questions, and your lawyer will presumably give you advice on what to answer, and what not to answer.
I had just glanced at the article - you are entirely correct. I should have read again before typing.Specifically you do NOT have a right to have counsel present during questioning, although it's not forbidden either--it could be agreed to, say in exchange for agreeing to be co-operative. But you do not have a right.
Links to the Judgements:
R. v. McCrimmon, 2010 SCC 36
http://scc.lexum.umontreal.ca/en/2010/2010scc36/2010scc36.html
R. v. Sinclair, 2010 SCC 35
http://scc.lexum.umontreal.ca/en/2010/2010scc35/2010scc35.html
R. v. Willier, 2010 SCC 37
http://scc.lexum.umontreal.ca/en/2010/2010scc37/2010scc37.html
A 5-4 rulling.
From R. v. Sinclair
In the context of a custodial interrogation, the purpose of s. 10(b) is to support detainees’ right to choose whether to cooperate with the police investigation or not, by giving them access to legal advice on the situation they are facing. This is achieved by requiring that they be informed of the right to consult counsel and, if a detainee so requests, that he or she be given an opportunity to consult counsel. Achieving this purpose may require that the detainee be given an opportunity to re‑consult counsel where developments make this necessary, but it does not demand the continued presence of counsel throughout the interview process. 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, and the detainee may wish to make counsel’s presence a precondition of giving a statement. . . .
The question is therefore whether the circumstances, viewed as a whole, indicate that S required further legal advice in order to fulfill the purpose of s. 10(b). Developments in the investigation that suggest that the detainee may be confused about his choices and right to remain silent may trigger the right to a renewed consultation with a lawyer under s. 10(b). That is not the case here. It is clear from the trial judge’s findings of fact that S never had any doubt about the choices the law allowed him and, in particular, his constitutional right to remain silent. S twice spoke with counsel of his choice. Both times, S told the police that he was satisfied with the call. At the beginning of the interview, S said to the officer that he had been told about some of the devices the police might use to obtain information from him, including lying to him, and that he had been advised not to discuss anything important with anyone. Later in the course of the interview, the police repeatedly confirmed that it was his choice whether he wished to speak with them or not. The police did not denigrate the legal advice he had received and repeatedly confirmed that it was his choice whether he wished to speak or not. There were no changed circumstances requiring renewed consultation with a lawyer. No s. 10(b) Charter breach has therefore been established.
From Justic Binnie's dissent:
A detainee is entitled to a further opportunity or opportunities to receive advice from counsel during a custodial interview where his or her request falls within the purpose of the s. 10(b) right (i.e. to satisfy a need for legal assistance rather than delay or distraction), and such request is reasonably justified by the objective circumstances that were or ought to have been apparent to the police during the interrogation.
From the dissent of Justices LeBel, Fish and Abella:
S’s right to counsel was infringed because the police prevented him from obtaining the legal advice to which he was entitled. His access to legal advice would have mitigated the impact of the police’s relentless and skilful efforts to obtain a confession from him. . . .
Confronted by bits and pieces of incriminating evidence, conjectural or real, the detainee may be wrongly persuaded that maintaining his or her right of silence is a futile endeavour: that the advice to remain silent originally provided by counsel is now unsound. Through ignorance of the consequences, the detainee may feel bound to make an incriminatory statement to which the police are not by law entitled. In what may seem counterintuitive to the detainee without legal training, it is often better to remain silent in the face of the evidence proffered, leaving it to the court to determine its cogency and admissibility, and forego the inevitable temptation to end the interrogation by providing the inculpatory statement sought by the interrogators. Access to counsel is therefore of critical importance at this stage to ensure, insofar as possible, that the detainee’s rights are respected and to provide the sense of security that legal representation is intended to afford. . . .
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. . . .
The assistance of counsel is a right granted not only to detainees under s. 10(b) of the Charter, but a right granted to every accused by the common law, the Criminal Code, and ss. 7 and 11(d) of the Charter. It is not just a right to the assistance of counsel, but to the effective assistance of counsel, and one that this Court has characterized as a principle of fundamental justice.
From R. v. Sinclair
In the context of a custodial interrogation, the purpose of s. 10(b) is to support detainees’ right to choose whether to cooperate with the police investigation or not, by giving them access to legal advice on the situation they are facing. This is achieved by requiring that they be informed of the right to consult counsel and, if a detainee so requests, that he or she be given an opportunity to consult counsel. Achieving this purpose may require that the detainee be given an opportunity to re‑consult counsel where developments make this necessary, but it does not demand the continued presence of counsel throughout the interview process. 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, and the detainee may wish to make counsel’s presence a precondition of giving a statement. . . .
The question is therefore whether the circumstances, viewed as a whole, indicate that S required further legal advice in order to fulfill the purpose of s. 10(b). Developments in the investigation that suggest that the detainee may be confused about his choices and right to remain silent may trigger the right to a renewed consultation with a lawyer under s. 10(b). That is not the case here. It is clear from the trial judge’s findings of fact that S never had any doubt about the choices the law allowed him and, in particular, his constitutional right to remain silent. S twice spoke with counsel of his choice. Both times, S told the police that he was satisfied with the call. At the beginning of the interview, S said to the officer that he had been told about some of the devices the police might use to obtain information from him, including lying to him, and that he had been advised not to discuss anything important with anyone. Later in the course of the interview, the police repeatedly confirmed that it was his choice whether he wished to speak with them or not. The police did not denigrate the legal advice he had received and repeatedly confirmed that it was his choice whether he wished to speak or not. There were no changed circumstances requiring renewed consultation with a lawyer. No s. 10(b) Charter breach has therefore been established.
From Justic Binnie's dissent:
A detainee is entitled to a further opportunity or opportunities to receive advice from counsel during a custodial interview where his or her request falls within the purpose of the s. 10(b) right (i.e. to satisfy a need for legal assistance rather than delay or distraction), and such request is reasonably justified by the objective circumstances that were or ought to have been apparent to the police during the interrogation.
From the dissent of Justices LeBel, Fish and Abella:
S’s right to counsel was infringed because the police prevented him from obtaining the legal advice to which he was entitled. His access to legal advice would have mitigated the impact of the police’s relentless and skilful efforts to obtain a confession from him. . . .
Confronted by bits and pieces of incriminating evidence, conjectural or real, the detainee may be wrongly persuaded that maintaining his or her right of silence is a futile endeavour: that the advice to remain silent originally provided by counsel is now unsound. Through ignorance of the consequences, the detainee may feel bound to make an incriminatory statement to which the police are not by law entitled. In what may seem counterintuitive to the detainee without legal training, it is often better to remain silent in the face of the evidence proffered, leaving it to the court to determine its cogency and admissibility, and forego the inevitable temptation to end the interrogation by providing the inculpatory statement sought by the interrogators. Access to counsel is therefore of critical importance at this stage to ensure, insofar as possible, that the detainee’s rights are respected and to provide the sense of security that legal representation is intended to afford. . . .
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. . . .
The assistance of counsel is a right granted not only to detainees under s. 10(b) of the Charter, but a right granted to every accused by the common law, the Criminal Code, and ss. 7 and 11(d) of the Charter. It is not just a right to the assistance of counsel, but to the effective assistance of counsel, and one that this Court has characterized as a principle of fundamental justice.
Notably, all canadians think of life in terms of American tv shows
So when a canadian is being interrogated and is refused Miranda rights, he/she feels helpless because the cops seem to be breaking the rules effortlessly, and that pressures the accused into confessing
So IMHO this decision while not changing much in terms of how these interrogations are conducted, at least draw some attention to the issue and hopefully more people would understand that they at least are entitled to not talk, while cops are indeed entitled to continue asking.
So when a canadian is being interrogated and is refused Miranda rights, he/she feels helpless because the cops seem to be breaking the rules effortlessly, and that pressures the accused into confessing
So IMHO this decision while not changing much in terms of how these interrogations are conducted, at least draw some attention to the issue and hopefully more people would understand that they at least are entitled to not talk, while cops are indeed entitled to continue asking.
