And now, an interlude from our Supreme Overlords…


A new Supreme Court of Canada decision says that Canadians do not, and never had, a right to have a lawyer present during questioning.  According to them, a lawyer may be present only if the police so choose.  Really, now – how many of you think that the po-leece are going to “choose” to allow this?



Citation:  R. v. Sinclair, 2010 SCC 35

Date:  2010-10-08

Docket:  32537


C.   The Right to Have Counsel Present Throughout the Interview

[33] Mr. Sinclair submits that s. 10(b) entitles a detainee to have a lawyer present, upon request, during the entirety of the interview.

[34] Precedent is against this interpretation of s. 10(b).  While this Court has never ruled directly on the matter, lower courts appear to be unanimous that no such right exists in Canada: see, e.g., R. v. Friesen reflex, (1995), 101 C.C.C. (3d) 167 (Alta. C.A.); R. v. Mayo 1999 CanLII 2695 (ON C.A.), (1999), 133 C.C.C. (3d) 168 (Ont. C.A.); R. v. Ekman, 2000 BCCA 414 (CanLII), 2000 BCCA 414, 146 C.C.C. (3d) 346.  Most recently, in Osmond, the Court of Appeal (per Donald J.A.) declined to entertain such a submission on the ground that it would reverse clear authority to the contrary. In Friesen, Côté J.A. expressed the prevailing view thus: “We should not (and cannot) change the law of Canada so as to forbid the police to talk to a detained suspect unless defence counsel sits in and rules on each question” (p. 182).


So, just because a bunch of other judges at the lower courts have decided this, the Overlords can’t think or act independently?  What happened to the liberal activists we all knew and loved?  This decision comes right out of some fascist Star Chamber!


[35] The language of s. 10(b) does not appear to contemplate this requirement.  Mr. Sinclair relies on an expansive construction of the word “instruct”, together with an emphasis on the French “l’assistance d’un avocat”.  He argues that this wording “invites a broad and unrestricted interpretation focused on meeting the needs of [the detainee] whenever and wherever required” (A.F., at para. 63).  While “retain and instruct” and their French equivalent reasonably connote more than a perfunctory consultation prior to interrogation, as discussed above, they do not necessarily imply the continued presence of counsel throughout the interview process.


An interesting interpretation, especially of the French language text.  I thought that in such cases, the Court was supposed to take a “broad view” of the accused’s rights, and any interpretation should go to their benefit.


[36] This returns us to the purpose of s. 10(b).  As discussed above, it is to inform the detainee of his or her rights and provide the detainee with an opportunity to get legal advice on how to exercise them.  These purposes can be achieved by the right to re-consult counsel where developments make this necessary, discussed below.  They do not demand the continued presence of counsel throughout the interview process.


But the Overlords could have decided that it does!  That’s what they are there for!


[37] Mr. Sinclair argues that other countries recognize a right to have counsel present throughout a police interview (see Miranda v. Arizona, 384 U.S. 436 (1966), and Escobedo v. Illinois, 378 U.S. 478 (1964)), and that Canada should do the same.  He relies on academic commentary.  See L. Stuesser “The Accused’s Right to Silence: No Doesn’t Mean No” (2002), 29 Man. L.J. 149, at p. 150.

[38] We are not persuaded that the Miranda rule should be transplanted in Canadian soil.  The scope of s. 10(b) of the Charter must be defined by reference to its language; the right to silence; the common law confessions rule; and the public interest in effective law enforcement in the Canadian context.  Adopting procedural protections from other jurisdictions in a piecemeal fashion risks upsetting the balance that has been struck by Canadian courts and legislatures.


From this and subsequent paragraphs, it seems to me that the Overlords have gone off on a tangent.  Not having the transcript, it is unclear that the accused was looking to “transplant Miranda” wholesale into Canadian law.  The legal point in question appears to be “do we have the right to have counsel present during questioning”.  This is but one facet of Miranda, as the Overlords rightly point out.  But from what I can tell, this is the only legal point the case was trying to make – not all the extraneous baggage that comes along with Miranda, as outlined below:


[39] Significant differences exist between the Canadian and American regimes.  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.  For example, Miranda applies only to persons “in custody”. Custody, for these purposes, means “‘formal arrest or restraint on freedom of movement’ [to] the degree associated with formal arrest”: California v. Beheler, 463 U.S. 1121 (1983), at p. 1125; Yarborough v. Alvarado, 541 U.S. 652 (2004). The Canadian understanding of psychological detention triggering s. 10(b) is more expansive: R. v. Grant, 2009 SCC 32 (CanLII), 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44.  Moreover, breach of the Miranda rule does not prohibit use at trial of the detainee’s evidence for the purpose of impeaching the accused’s testimony at trial (Harris v. New York, 401 U.S. 222 (1971); Oregon v. Hass, 420 U.S. 714 (1975)), nor prohibit the introduction at trial of real derivative evidence (United States v. Patane, 524 U.S. 630 (2004)).  By contrast, Canadian rules on the admissibility of evidence obtained in violation of s. 10(b) are much more favourable to the accused: see R. v. Calder, 1996 CanLII 232 (S.C.C.), [1996] 1 S.C.R. 660; R. v. Noël, 2002 SCC 67 (CanLII), 2002 SCC 67, [2002] 3 S.C.R. 433, at para. 55; Grant, at paras. 116‑28.


My opinion is that the Overlords here made a major mistake, giving far too much weight to such extraneous arguments, in face of the legal question before it.  Of course Canadian decisions should not be over-ruled by the importation of an American SCOTUS decision – that’s just stupid.  This strikes me as being some kind of “straw man” argument, that gave the Overlords a “way out” of having to make a tough decision.


[40] Additionally, the empirical research on Miranda has not reached a definitive conclusion as to the nature or magnitude of its effects.  Some have posited that it has had a detrimental effect on law enforcement. Others have vigorously contested such empirical conclusions. See generally, e.g., P. G. Cassell, “Miranda’s Social Costs: An Empirical Reassessment” (1995-96), 90 Nw. U.L. Rev. 387; P. G. Cassell and R. Fowles, “Handcuffing the Cops? A Thirty-Year Perspective on Miranda’s Harmful Effects on Law Enforcement” (1997-1998), 50 Stan. L. Rev. 1055; S. J. Schulhofer, “Miranda’s Practical Effect: Substantial Benefits and Vanishingly Small Social Costs” (1996), 90 Nw. U.L. Rev. 500.  Whatever the merit of these arguments, the existence of such a controversy should signal caution in relying on any empirical conclusions about Miranda in departing from our own constitutional traditions.


So what if Miranda has had a “detrimental effect on law enforcement”?  Why should that stop the Courts from making a ruling in defence of our rights?  To my mind, this sets up a very dangerous legal precident, where the Police could act as Intervenors in court cases where their “interests” could be at risk, because some legal principle might have a “detrimental effect on law enforcement”.  The Courts should have the interests of The People at the heart of their deliberations, not that it might make the jobs of the police more difficult!


[41] Moreover, any inferences drawn from the American experience as to the effects on law enforcement of a Miranda-type regime must be tempered by the fact that about 80 percent of suspects ultimately waive their Miranda rights: see, e.g., P. G. Cassell and B. S. Hayman, “Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda” (1995-1996), 43 U.C.L.A. L. Rev. 839; R. A. Leo, “Inside the Interrogation Room” (1995-1996), 86 J. Crim. L. & Criminology 266. This has led some authors to assert that Miranda provides only illusory protections to the vast majority of individuals who are subjected to custodial interrogation: see C. D. Weisselberg, “Mourning Miranda” (2008), 96 Cal. L. Rev. 1519; R. J. Allen, “Miranda’s Hollow Core” (2006), 100 Nw. U.L. Rev. 71; M. A. Godsey, “Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings” (2006), 90 Minn. L. Rev. 781.


Again, so what?  If 80 percent of suspects waived their Charter 10a&b Rights, does that mean that we should get rid of them?  What kind of lame-brained legal nonsense is this?  Sounds like another dodge to me.


[42] We conclude that s. 10(b) should not be interpreted as conferring a constitutional right to have a lawyer present throughout a police interview.  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.


However, in another “brilliant” decision, the Overlords ruled that the po-leece don’t have to stop questioning you because you exercise your right to remain silent, 18 times – more to come!


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