No right to lawyer during questioning, says top court
Leaves fall on the grounds of the Supreme Court of Canada this week in Ottawa. The court ruled Friday that Canadians do not have the right to have a lawyer present during questioning as Americans do under the Miranda rule.
John Ward The Canadian Press
OTTAWA—The American Miranda rule that gives a suspect the right to have a lawyer present during questioning has no place here, the Supreme Court of Canada ruled Friday. In three related decisions, a sharply divided court fine-tuned the rules on suspects’ right to counsel. In the main case, the justices ruled 5-4 that the Charter of Rights does not confer a right to have a lawyer present during interrogation.
That means Miranda, a staple of TV cop shows where lawyers whisper to their clients while detectives ask questions, does not apply. The court also held that suspects have no right to interrupt an interrogation to consult again with a lawyer except in some limited circumstances. They said that while suspects generally have the right to a lawyer of their choice, they must accept another if they cannot contact their own within a reasonable time.
Chief Justice Beverley McLachlin and Justice Louise Charron wrote for the majority in all three cases. Justices Morris Fish and Louis Lebel wrote sharp dissents in two of the three cases, with Justice Rosalie Abella concurring. Justice Ian Binnie contributed his own dissent in the main decision.
McLachlin and Charron were clear in rejecting Miranda. They said there is a right for a suspect to consult a lawyer before questioning and to be informed of that right. But the reason for consultation is to give the suspect legal advice on whether to co-operate. There is no requirement that a lawyer be there for the questioning.
“We are not persuaded that the Miranda rule should be transplanted in Canadian soil,” they wrote. They said the Canadian and U.S. systems differ. “Miranda came about in response to abusive police tactics then prevalent in the U.S. and applies in the context of a host of other rules that are less favourable to the accused than their equivalents in Canada.”
The judges warned about grafting rules from other countries onto the Canadian system. “Adopting procedural protections from other jurisdictions in a piecemeal fashion risks upsetting the balance that has been struck by Canadian courts and legislatures.” There is nothing to prevent having a lawyer present if all sides agree, however.
McLachlin and Charron said suspects can’t interrupt questioning with demands for more legal advice except in certain, limited circumstances. For example, if the charge is changed during questioning, or if police want to use a different procedure, such as a lineup or a lie-detector test, or if there are reasons to suspect that someone doesn’t understand their rights, then the suspect should be able to get further advice.
The court also ruled that police can continue to ask questions even after a suspect has invoked the right to silence. “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, in our respectful view, would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone,” the decision said.
On the question of a right to a counsel of one’s choice, the court said that applies only if the lawyer can be contacted within a reasonable time. A reasonable time, the court said, depends on the circumstances, including the seriousness of the charge and the urgency of the investigation.
“If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended.” The three cases, two from British Columbia and one from Alberta, all addressed aspects of the right to counsel. The court used one as a main case and then applied those findings to the other two.
In the two B.C. cases, the appellants lost their bids to have guilty verdicts overturned. In the Alberta case, a trial judge found the defendant’s right to a lawyer had been breached and he was acquitted. The court of appeal overturned that and ordered a new trial. The Supreme Court ruling means the new trial will go ahead.
First I've heard of this, but it's very convuluted! The Canadian Charter of Rights & Freedoms is largely a joke -- mainly because it's so non-specific -- but WTF is this saying? That if we can't get a lawyer of choice quickly enough that we have to accept a state appointed one, assuming we insist on a lawyer in the first place? Or does it mean if we choose our God-given right to remain silient, that that's not good enough and the interrorgators have carte blanche to beat or otherwise coerce us into submission?
The right to counsel, diminished
Section 10 (b) of the Canadian Charter of Rights and Freedoms reads, “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” But a majority of the nine-member court – six judges – says that the initial phone call is enough, unless something has changed during the interrogation to justify another call. As for what that change is, consult a constitutional scholar – it is now beyond the average person's ability to understand. Simply being questioned for several hours in the middle of the night while being refused the right to return to one's cell is not deemed reason enough to have a lawyer present.
What happens when the highest judges of the land have no respect for the spirit of law, nor justice, nor the essence of one's country, yet hold the power to judge the lives of free people?