Archive for the ‘Supreme Overlords’ Category

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Your teacher was right – don’t “fidget”.

SUPREME COURT OF CANADA

Citation:  R. v. Grant, 2009 SCC 32,  [2009] 2 S.C.R. 353

Date:  20090717

Docket:  31892

[…]

At trial, the accused alleged violations of his rights under ss. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms. The trial judge found no Charter breach and admitted the firearm. The accused was convicted of five firearms offences.  The Court of Appeal upheld the convictions for different reasons.  It concluded that a detention had crystallized during the conversation with G, before the accused made his incriminating statements, and that the detention was arbitrary and in breach of s. 9 of the Charter. However, it held that the gun should be admitted into evidence under s. 24(2) of the Charter. The court agreed with the trial judge that the accused’s act of moving the gun from one place to another fell within the definition of “transfer” in the Criminal Code, and that this justified the conviction for possession of a firearm for the purposes of weapons trafficking.

Held : The appeal should be allowed on the trafficking charge and an acquittal entered.  The appeal should be dismissed on all other counts.

Per McLachlin C.J. and LeBel, Fish, Abella and Charron JJ.:

Existing jurisprudence on the issues of detention and exclusion of evidence is difficult to apply and may lead to unsatisfactory results.  It is the duty of the Court, without undermining the principles that animate the jurisprudence to date, to take a fresh look at the frameworks that have been developed for the resolution of these two issues.

[…]

The evidence of the firearm was obtained in a manner that breached the accused’s rights under ss. 9 and 10(b) of the Charter.  An unlawful detention is necessarily arbitrary, in violation of s. 9.  The officers acknowledged at trial that they did not have legal grounds or a reasonable suspicion to detain the accused prior to his incriminating statements. Therefore, the detention was arbitrary.  The police also failed to advise the accused of his right to speak to a lawyer before the questioning that led to the discovery of the firearm.  The right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes.  [11] [55] [57‑58]

The Agents of the State stopped this guy based on nothing more than their “hunch” that the guy was “hinky”

The criteria relevant to determining when, in “all the circumstances”, admission of evidence obtained by a Charter breach “would bring the administration of justice into disrepute” must be clarified.  The purpose of s. 24(2), as indicated by its wording, is to maintain the good repute of the administration of justice.  Viewed broadly, the term “administration of justice” embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.  The phrase “bring the administration of justice into disrepute” must be understood in the long‑term sense of maintaining the integrity of, and public confidence in, the justice system.  While exclusion of evidence resulting in an acquittal may provoke immediate criticism, s. 24(2) does not focus on immediate reaction to the individual case.  Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence.  The inquiry is objective.  It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.  Section 24(2)’s focus is not only long‑term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice.  Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.  Section 24(2)’s focus is also societal.  Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.  [66‑70]

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter‑infringing state conduct, (2) the impact of the breach on the Charter‑protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits.  At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.  The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.  The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right.  The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.  At the third stage, a court asks whether the truth‑seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.  Factors such as the reliability of the evidence and its importance to the Crown’s case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case.  Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.  [71‑72] [76‑77] [79] [86] [127]

The Overlords are setting new case law precedent with this three-pronged test.

Here, the gun was discovered as a result of the accused’s statements taken in breach of the Charter.  When the three‑stage inquiry is applied to the facts of this case, a balancing of the factors favours the admission of the derivative evidence.  The Charter‑infringing police conduct was neither deliberate nor egregious and there was no suggestion that the accused was the target of racial profiling or other discriminatory police practices.  The officers went too far in detaining the accused and asking him questions, but the point at which an encounter becomes a detention is not always clear and the officers’ mistake in this case was an understandable one. Although the impact of the Charter breach on the accused’s protected interests was significant, it was not at the most serious end of the scale.  Finally, the gun was highly reliable evidence and was essential to a determination on the merits.  The balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision. However, when all these concerns are weighed, the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute.  The significant impact of the breach on the accused’s Charter‑protected rights weighs strongly in favour of excluding the gun, while the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission.  However, the police officers were operating in circumstances of considerable legal uncertainty, and this tips the balance in favour of admission. [132‑133] [139‑140]

One would think that if the law is “not always clear” and “uncertain”, that the benefit should go to the accused; how can one know, exactly, when one is being “detained” or not, if the cops don’t?

Per Deschamps J.:

[…]

In this case, to admit the weapon in evidence would have a positive effect on the repute of the administration of justice.  According to the trial judge’s findings of fact, the exchange lasted only a few minutes, the officers were polite to the accused, and they were motivated by a desire to take a proactive approach in patrolling an area near schools with serious problems related to youth crime and safety.  On the protection of the public, it should be noted that the charge is firearms‑related, that it would be impossible to establish guilt without the evidence and that the evidence is eminently reliable.  When balanced against each other, the limited impact of the violation on the protected interests and the great importance of the evidence for the purposes of the trial favour admitting the physical evidence. [228‑229]

So, as long as  the crime is “serious enough”, your rights don’t mean squat!  I would like to think that if the crime is of a serious nature, then your rights should be even more greatly safeguarded, as the possible punishment one faces would be correspondingly severe.

The judgment of McLachlin C.J. and LeBel, Fish, Abella and Charron JJ. was delivered by

The Chief Justice and Charron J. —

II.     Facts

[5]     Mr. Grant, a young black man, was walking northbound on Greenwood Avenue when he came to the attention of Constables Worrell and Forde.  As the two officers drove past, Cst. Worrell testified that the appellant “stared” at them in an unusually intense manner and continued to do so as they proceeded down the street, while at the same time “fidgeting” with his coat and pants in a way that aroused their suspicions.  Given their purpose for being in the area and based on what he had just seen, Cst. Worrell decided that “maybe we should have a chat with this guy and see what’s up with him”.  Cst. Worrell wanted to know whether Mr. Grant was a student at one of the schools they were assigned to monitor, and, if he was not, whether he was headed to one of the schools anyway.  Noticing Cst. Gomes parked on the street ahead of Mr. Grant, and in light of his uniformed attire, the two plainclothes officers suggested to Cst. Gomes that he “have a chat” with the approaching appellant to determine if there was any need for concern.

As seen previously, it was acknowledged that the cops did not have “reasonable grounds” to “detain” the suspect, let alone search him.

IV.     Analysis

A.      Breach of the Charter

1.   The Meaning of “Detention” Under the Charter

(b)   Interpretative Principles

[15] As for any constitutional provision, the starting point must be the language of the section.  Where questions of interpretation arise, a generous, purposive and contextual approach should be applied.

[16] Constitutional guarantees such as ss. 9 and 10 should be interpreted in a “generous rather than . . . legalistic [way], aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection” (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (S.C.C.), [1985] 1 S.C.R. 295, at p. 344).  Unduly narrow, technical approaches to Charter interpretation must be avoided, given their potential to “subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter” (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 23).

[17] While the twin principles of purposive and generous interpretation are related and sometimes conflated, they are not the same.  The purpose of a right must always be the dominant concern in its interpretation; generosity of interpretation is subordinate to and constrained by that purpose (P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), vol. 2, at pp. 36-30 and 36-31). While a narrow approach risks impoverishing a Charter right, an overly generous approach risks expanding its protection beyond its intended purposes.  In brief, we must construe the language of ss. 9 and 10 in a generous way that furthers, without overshooting, its purpose: Big M Drug Mart, at p. 344.

I always thought that the “purpose” of a right was to safeguard the interests of the individual from the State’s overstepping its authority.

[21] More specifically, an individual confronted by state authority ordinarily has the option to choose simply to walk away: R. v. Esposito 1985 CanLII 118 (ON C.A.), (1985), 24 C.C.C. (3d) 88 (Ont. C.A.), at p. 94; Dedman v. The Queen, 1985 CanLII 41 (S.C.C.), [1985] 2 S.C.R. 2, at p. 11, citing Martin J.A. in the Ontario Court of Appeal ((1981), 32 O.R. (2d) 641, at p. 653):

Although a police officer may approach a person on the street and ask him questions, if the person refuses to answer the police officer must allow him to proceed on his way, unless . . . [he] arrests him . . . .

See also Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 (CanLII), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 131. Where this choice has been removed — whether by physical or psychological compulsion — the individual is detained. Section 9 guarantees that the state’s ability to interfere with personal autonomy will not be exercised arbitrarily. Once detained, the individual’s choice whether to speak to the authorities remains, and is protected by the s. 10 informational requirements and the s. 7 right to silence.

Which is why anyone who is confronted by the po-leece should always ask “am I being detained?” – if the answer is “no”, then leave; if the answer is “yes” then exercise your right to silence, and demand a lawyer.  If you don’t know your rights, you can’t exercise them properly.

[22] “Detention” also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination.  They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty.  As this Court observed in R. v. Hebert, 1990 CanLII 118 (S.C.C.), [1990] 2 S.C.R. 151:

In a broad sense, the purpose of ss. 7 to 14 is two‑fold to preserve the rights of the detained individual, and to maintain the repute and integrity of our system of justice.  More particularly, it is to the control of the superior power of the state vis‑à‑vis the individual who has been detained by the state, and thus placed in its power, that s. 7 and the related provisions that follow are primarily directed. The state has the power to intrude on the individual’s physical freedom by detaining him or her.  The individual cannot walk away.  This physical intrusion on the individual’s mental liberty in turn may enable the state to infringe the individual’s mental liberty by techniques made possible by its superior resources and power.  [Emphasis added; pp. 179-80.]

[23] By setting limits on the power of the state and imposing obligations with regard to the detained person through the concept of detention, the Charter seeks to effect a balance between the interests of the detained individual and those of the state. The power of the state to curtail an individual’s liberty by way of detention cannot be exercised arbitrarily and attracts a reciprocal obligation to accord the individual legal protection against the state’s superior power.

Well, at least they seem to understand the nature of individual rights vs the power of the State

However…

[137]      As discussed, discoverability remains a factor in assessing the impact of Charter breaches on Charter rights.  The investigating officers testified that they would not have searched or arrested Mr. Grant but for his self-incriminatory statements. Nor would they have had any legal grounds to do so.  Accordingly, the fact that the evidence was non-discoverable aggravates the impact of the breach on Mr. Grant’s interest in being able to make an informed choice to talk to the police. He was in “immediate need of legal advice” (Brydges, at p. 206) and had no opportunity to seek it.

[138]      Considering all these matters, we conclude that the impact of the  infringement of Mr. Grant’s rights under ss. 9 and 10(b) of the Charter was significant.

[139]      The third and final concern is the effect of admitting the gun on the public interest in having a case adjudicated on its merits.  The gun is highly reliable evidence. It is essential to a determination on the merits.  The Crown also argues that the seriousness of the offence weighs in favour of admitting the evidence of the gun, so that the matter may be decided on its merits, asserting that gun crime is a societal scourge, that offences of this nature raise major public safety concerns and that the gun is the main evidence in the case.  On the other hand, Mr. Grant argues that the seriousness of the offence makes it all the more important that his rights be respected.  In the result, we do not find this factor to be of much assistance.

[140]      To sum up, the police conduct was not egregious.  The impact of the Charter breach on the accused’s protected interests was significant, although not at the most serious end of the scale.  Finally, the value of the evidence is considerable. These effects must be balanced in determining whether admitting the gun would put the administration of justice into disrepute.  We agree with Laskin J.A. that this is a close case. The balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision.  However, weighing all these concerns, in our opinion the courts below did not err in concluding that the admission of the gun into evidence would not, on balance, bring the administration of justice into disrepute.  The significant impact of the breach on Mr. Grant’s Charter-protected rights weighs strongly in favour of excluding the gun, while the public interest in the adjudication of the case on its merits weighs strongly in favour of its admission.   Unlike the situation in R. v. Harrison, 2009 SCC 34 (CanLII), 2009 SCC 34, [2009] 2 S.C.R. 494, the police officers here were operating in circumstances of considerable legal uncertainty. In our view, this tips the balance in favour of admission, suggesting that the repute of the justice system would not suffer from allowing the gun to be admitted in evidence against the appellant.

So, as long as the cops are polite to you, and the “societal interest” is sufficient enough, then your rights mean squat…good to know.

V.   Conclusion

[149]           We would allow the appeal on Count 4 (the trafficking charge) and enter an acquittal. On all other counts, we would dismiss the appeal.

All the other firearms convictions were upheld, only the trafficking charge was dismissed

Combined with the other two decisions by our Supreme Overlords I have already posted, we no longer have the right to remain silent, the right to an attorney, nor the right against arbitrary detention and ureasonable search and seizure.

And people think Canada is a “free” country?  Guess again!


 

From the Right to Retain Counsel, to the Right to Remain Silent.  I’m sure glad that our Supreme Overlords are on the job, looking out for our best interests…


SUPREME COURT OF CANADA

Citation: R. v. Singh, [2007] 3 S.C.R. 405, 2007 SCC 48

Date:  2007-11-01

Docket:  31558

Between:

Jagrup Singh

Appellant

v.

Her Majesty The Queen

Respondent

and

Attorney General of Ontario,

Director of Public Prosecutions of Canada,

Criminal Lawyers’ Association of Ontario and

Canadian Association of Chiefs of Police

Interveners

 

Take note of that last Intervener…what did I say in my last post?

 

The accused was arrested for second degree murder in respect of the shooting death of an innocent bystander who was killed by a stray bullet while standing just inside the doorway of a pub.  The accused was advised of his right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms and privately consulted with counsel.  During the course of two subsequent interviews with police, the accused stated on numerous occasions that he did not want to talk about the incident.  The interviewing officer persisted in trying to get him to make a statement.  While the accused never confessed to the crime, he made a number of admissions which, when taken together with other evidence, later became probative of the issue of identification at trial.  On the voir dire to determine the admissibility of the statements made by the accused, the trial judge held, after reviewing all of the circumstances surrounding the interrogation and the making of the incriminating admission, that the admission came freely and did not result from the police systematically breaking down his operating mind or undermining his right to silence.  The probative value of the statements was held to outweigh their prejudicial effect and the trial judge thus ruled them admissible.  The accused was subsequently convicted by a jury.  The Court of Appeal upheld the trial judge’s ruling and affirmed the conviction.  Both in the Court of Appeal and in this Court the accused did not contest the trial judge’s findings of fact nor his conclusion that the statements were voluntary; his appeal solely concerns the s. 7 Charter right to silence.

Held (Binnie, LeBel, Fish and Abella JJ. dissenting):  The appeal should be dismissed.

 

That means the guy lost his case


The judgment of McLachlin C.J. and Bastarache, Deschamps, Charron and Rothstein JJ. was delivered by

Charron J.  —

1.  Overview

1                                   This appeal concerns the scope of a detainee’s pre-trial right to silence under s. 7 of the Canadian Charter of Rights and Freedoms and, in particular, the intersection between this Charter right as defined in R. v. Hebert, 1990 CanLII 118 (S.C.C.), [1990] 2 S.C.R. 151, and the common law voluntary confessions rule as restated in R. v. Oickle, 2000 SCC 38 (CanLII), [2000] 2 S.C.R. 3, 2000 SCC 38. As in those cases, the discussion in this appeal focusses on the tension between the rights of the accused and society’s interest in the effective investigation and resolution of crimes.


7                                   First, I reject the appellant’s contention that this Court should change the law relating to the pre-trial Charter right to silence.  The new approach advocated by the appellant ignores the critical balancing of state and individual interests which lies at the heart of this Court’s decision in Hebert and of subsequent s. 7 decisions. I see no reason to depart from these established principles.


Of course not…heaven forbid that the Overlords support and defend our rights – or even expand on them!

 

18                              The Court of Appeal held that Mr. Singh’s broad proposition on the limits of police interrogation could not be supported by a fair reading of Hebert and was inconsistent with the weight of authority.  Rather, the case law recognizes that “the police are not precluded from using reasonable persuasion to encourage a detained person to break his silence after his right to silence has been asserted following the exercise of the right to counsel” (para. 15).  The court concluded that the trial judge properly relied on the holding in Hebert that “[p]olice persuasion, short of denying the suspect the right to choose or depriving him of an operating mind, does not breach the right to silence” (Hebert, at p. 184).

 

3.  Analysis

3.1   Self-incrimination: The Overarching Principle from Which Both the Confessions Rule and the Right to Silence are Derived

21                              Although historically the confessions rule was more concerned with the reliability of confessions than the protection against self-incrimination, this no longer holds true in the post-Charter era.  Both the confessions rule and the constitutional right to silence are manifestations of the principle against self-incrimination.  The principle against self-incrimination is a broad concept which has been usefully described by Lamer C.J. as a “general organizing principle of criminal law” from which a number of rules can be derived:  R. v. Jones, 1994 CanLII 85 (S.C.C.), [1994] 2 S.C.R. 229, at p. 249.  Similarly, Iacobucci J. in R. v. White, 1999 CanLII 689 (S.C.C.), [1999] 2 S.C.R.  417, described the principle against self-incrimination in these words:

The jurisprudence of this Court is clear that the principle against self-incrimination is an overarching principle within our criminal justice system, from which a number of specific common law and Charter rules emanate, such as the confessions rule, and the right to silence, among many others. The principle can also be the source of new rules in appropriate circumstances. Within the Charter, the principle against self-incrimination is embodied in several of the more specific procedural protections such as, for example, the right to counsel in s. 10(b), the right to non-compellability in s. 11(c), and the right to use immunity set out in s. 13.  The Charter also provides residual protection to the principle through s. 7. [Emphasis added; para. 44.]

 

So, the Overlords were not legally precluded from expanding this right, they just chose not to!

To me, there didn’t seem to be anything much in the way of extra-ordinary legal justification for their ruling, other than simply maintaining the status quo.

Let’s take a look at the minority (dissenting) opinion:

 

The reasons of Binnie, LeBel, Fish and Abella JJ. were delivered by

Fish J. (dissenting)  —

-I-

55                              The question on this appeal is whether “no” means “yes” where a police interrogator refuses to take “no” for an answer from a detainee under his total control. As a matter of constitutional principle, I would answer that question in the negative, allow the appeal and order a new trial.

 

58                              The appellant, Jagrup Singh, asserted his right to silence unequivocally —  not once, but 18 times.  Throughout his interrogation, Mr. Singh was imprisoned in a police lock-up.  In the trial judge’s words, he was “totally under the control of the police authorities”, “[did] not have freedom of unescorted movement” and “relie[d] totally on his jailers for the necessities of life” (Ruling on the voir dire, 2003 BCSC 2013 (CanLII), [2003] B.C.J. No. 3174 (QL), 2003 BCSC 2013, at para. 8).  Powerless to end his interrogation, Mr. Singh asked, repeatedly, to be returned to his cell.  Yet he was not permitted to do so until he capitulated and made the incriminating statements impugned on this appeal.

59                              Mr. Singh’s interrogator understood very well that Mr. Singh had chosen not to speak with the police.  The interrogator nonetheless disregarded Mr. Singh’s repeated assertions of his right to silence.  It is undisputed that he did so “in an effort to get [Mr. Singh] to confess, no matter what” (Ruling on the voir dire, at para. 34 (emphasis added)).

60                              In his relentless pursuit of this objective, the interrogator urged Mr. Singh, subtly but unmistakeably, to forsake his counsel’s advice.  I find this aspect of the interrogation particularly disturbing.

 

Seems to me that there was a little more going on than the po-leece asking him to “pretty please talk to us”…


70                              Before leaving this branch of the matter, I take care not to be understood to have held that 18 (a significant number in other contexts) is of any importance at all in determining whether a detainee’s right of silence has been effectively undermined.  On the contrary, I favour a purposive approach and find it unnecessary to decide whether 18 times is too many or once is too few.  Constitutional rights do not have to be asserted or invoked a pre-determined number of times before the state and its agents are bound to permit them to be exercised freely and effectively.  A right that need not be respected after it has been firmly and unequivocally asserted any number of times is a constitutional promise that has not been kept.

71                              Nothing in Hebert, or in any other decision of this Court, permits the police to press detainees to waive the Charter rights they have firmly and unequivocally asserted, or to deliberately frustrate their effective exercise. This is true of the right to counsel and true as well of the right to silence.

 

That sounds about right – I’m sure the majority of Canadians would agree with these sentiments.

 

87                              Neither of these rights has been given constitutional protection on the condition that it not be exercised, lest the investigation of crime be brought to a standstill.  On the contrary, the policy of the law is to facilitate, and not to frustrate, the effective exercise of both rights by those whom they are intended to protect. They are Charter rights, not constitutional placebos.

 

Exactly – a right is a right is a right, and must be treated as such.


88                              Moreover, we have no evidence to support the proposition that requiring the police to respect a detainee’s right of silence, once it has been unequivocally asserted, would have  a “devastating impact” on criminal investigations anywhere in this country.

 

96                              Finally, even in the absence of the required evidentiary foundation, I am prepared for present purposes to recognize that the work of the police would be made easier (and less challenging) if police interrogators were permitted to undermine the constitutionally protected rights of detainees, including the right to counsel and the right to silence — either by pressing detainees to waive them, or by “unfairly frustrat[ing]” their exercise (Hebert, at p. 186).  More draconian initiatives might prove more effective still.

 

At least someone on the Top Bench seems to “get it”…


97                              Nonetheless and without hesitation, I much prefer a system of justice that permits the effective exercise by detainees of the constitutional and procedural rights guaranteed to them by the law of the land.  The right to silence, like the right to counsel, is in my view a constitutional promise that must be kept.

 

Amen to that, brother man!  Sadly, this is just the Minority Report, so it seems that we have neither the Right to Retain or Remain, just Do As We Say!

 

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?

 

SUPREME COURT OF CANADA

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!