Tuesday 12 October 2010

Right to have lawyer present during interrogation

Canadians have one tremendous advantage over their American cousins. When it comes to criminal law, Canadians have only one criminal code whereas the Americans have fifty-one criminal codes (which includes Washington D.C.) The advantage is obvious considering that it means that what is a criminal offence in British Columbia is the same criminal offence in Newfoundland.

However, I think an advantage that the Americans have over Canadians is the rights of suspects when they are arrested and questioned by the police.

The Miranda warning (also referred to as Miranda rights) is a warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial situation) before they are interrogated to inform them about their constitutional rights. In Miranda v. Arizona, the Supreme Court of the United States held that an elicited incriminating statement by a suspect will not constitute admissible evidence unless the suspect was informed of the right to decline to make self-incriminatory statements and the right to legal counsel (hence the so-called "Miranda rights"), and makes a knowing, intelligent and voluntary waiver of those rights. The Miranda warning is not a condition of detention, but rather a safeguard against self-incrimination; as a result, if law enforcement officials decline to offer a Miranda warning to an individual in their custody, they may still interrogate that person and act upon the knowledge gained, but may not use that person's statements to incriminate him or her in a criminal trial.

In Canada, equivalent rights exist pursuant to the Charter of Rights and Freedoms. Under the Charter, an arrested person has the right: to be informed promptly of the reasons of the arrest; to retain and instruct counsel without delay and be informed of that right.

Here is a more detailed version: “I am arresting you for (charge). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You may call any lawyer you want. There is a 24-hour telephone service available which provides a legal aid duty lawyer who can give you legal advice in private. This advice is given without charge and the lawyer can explain the legal aid plan to you. If you wish to contact a legal aid duty lawyer, I can provide you with a telephone number. Do you understand? Do you want to call a lawyer? You are not obliged to say anything, but anything you do say may be given in evidence.”

A number of years ago, I was deeply concerned that suspects who were arrested in the middle of the night couldn’t contact their lawyers or for that matter, any lawyers so I brought my concerns to the fore when I addressed the delegates attending a crime conference in Canada. I suggested that Legal Aid should have lawyers on call 24 hours a day. Ontario Legal Aid took up my suggestion and in three months, they instituted the 24-hour duty counsel plan where anyone who was arrested would be given a phone number at the police station where they were taken and could speak to the duty lawyer who was on call.

The conversation between the suspect and the duty counsel is private and is done out of earshot of the police. What the duty counsel does for the suspect if to tell him of his rights especially the right to remain silent.

A common question asked by suspects arrested for impaired driving is whether or not he is required to blow into a breathalyzer. The lawyer will explain to the suspect that if he refuses to blow into the machine, he will be convicted of an offence and the penalty is no different than if he blew into the machine and the reading was high.

Anyone who has ever watched American television shows in which the police have arrested a suspect and taken him to the station, are fascinated by the way the police suddenly walk out of the interrogation room once the suspect says to them, “I want a lawyer.”

It’s not quite like that in Canada. Once the suspect arrives at the police station, he is given the phone number of the duty counsel so after he has spoken to him, it is pointless to tell the police that he wants a lawyer. He can later apply to Legal Aid for a lawyer or he can later speak to his own lawyer but meanwhile what happens in the police station is that he is then taken to the interrogation room to be questioned.

Now if he is smart, he will follow the advice that was given to him by the duty counsel and keep his mouth shut. But as we all know, many, if not most criminals are not smart and they think that they can outsmart of the police interrogators. Some really do outsmart their interrogators but most do not because for the most part, the police generally have enough proof of the guilt of the suspect even before they talk to him in the interrogation room.

In the American TV shows, the suspect is sitting next to his lawyer when he is being interrogated. And in those shows, the two of them consult with one another by whispering in each’s ear or the lawyer will say to the suspect, “Don’t answer that!”

That doesn’t happen in Canada because it is rare indeed that the suspect’s lawyer is in the interrogation room while his client is being questioned by the police.

Now the Supreme Court of Canada has made it official. In R. v. Sinclair, a decision published in October 2010, suspects do not have the right to have their lawyer present in the interrogation room while they are being interrogated. The background of this interesting case is as follows:

After being arrested for murder, Trent Sinclair was advised of his right to counsel, and twice spoke by telephone with a lawyer of his choice. He was later interviewed by a police officer for several hours. Sinclair stated on a number of occasions during the interview that he had nothing to say on matters touching the investigation and wished to speak to his lawyer again. The officer confirmed that Sinclair had the right to choose whether to talk or not, however, he refused to allow Sinclair to consult with his lawyer any further. He also told Sinclair that he did not have the right to have his lawyer present during questioning.

The officer continued the questioning. In time, Sinclair implicated himself in the murder. At the end of the interview, the police placed Sinclair into a cell with an undercover officer. While in the cell, Sinclair made further incriminating statements to that officer. Sinclair later accompanied the police to the location where the victim had been killed and participated in a re enactment.

Now as anyone can see, Sinclair was extremely stupid, especially when he began discussing the murder he committed with a complete stranger who was in his cell.

But the issue before the court was whether or not Sinclair was denied his right to have his lawyer present during the interrogation and whether or not the police had an obligation to let him speak to his lawyer a third time after the interrogation had already begun.

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. When I was practicing law, two witnesses to two murders asked me to be present when they were being questioned by the police and in one case, by the crown attorney (prosecutor) The police and prosecutor agreed and I remained in the room. Only once did I intercede and that was when it appeared that the witness didn’t fully understand the question put to her. The police and prosecutor knew that if I wasn’t permitted to be present during the interview with the witnesses, they wouldn’t cooperate.

However, if they had been suspects, the police could have legally prevented me from being present however if I was present and they gave incriminating statements that would harm their defences, I could be called upon as a witness as to what they said during the interrogation.

Section 10(b) of the Charter does not mandate the presence of defence counsel throughout a custodial interrogation. Precedent is against this interpretation and the language of s. 10(b) does not appear to contemplate this requirement. Moreover, the purpose of s. 10(b) does not demand the continued presence of counsel throughout the interview process. In most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) such as the detainee being charged with an additional crime.

The court’s interpretation of s. 10(b) does not give carte blanche to the police as contended. This argument overlooks the requirement that confessions must be voluntary in the broad sense now recognized by the law. The police must not only fulfill their obligations under s. 10(b), they must conduct the interview in strict conformity with the confessions rule.

But looking at this issue in another way, one could argue that 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.

In this case, the initial refusal to allow Sinclair to consult further with his counsel did not constitute a Charter breach. One could however argue that the breach occurred when after several hours or so of suggestions (subtle and not so subtle) the officer confronted Sinclair with evidence linking him to the crime and Sinclair repeating five times his desire to consult with his counsel before answering any further questions relating to the evidence he was then being told about.

One of the dissenting justices in the court argued that Sinclair was faced with a second degree murder charge and as such, it could not reasonably be said that the 360 seconds of legal advice he received in the two initial phone calls before the police began their interrogation was enough to exhaust his s. 10(b) guarantee. Given the unfolding of new information up to that point in the interview, Sinclair’s request to speak again to counsel was reasonable, and the police refusal of that further consultation was a breach of s. 10(b).

I agree to some degree with that argument. However, I am sure that Sinclair’s lawyer’s advice was probably that Sinclair should say nothing until he (the lawyer) has had a chance to meet him and discuss the charge at length. If Sinclair didn’t follow that advice and tried to handle the questioning without in-depth consultation with his lawyer, then he brought the problem onto his own shoulders.

If after every question put to him, Sinclair would call his lawyer and ask for advice, then in essence, he would be going around the policy of lawyers not being present during questioning of suspects.

The concern I have is that what now appears to be licenced as a result of the “interrogation trilogy” — Oickle, Singh, and the present case — is that an individual (presumed innocent) may be detained and isolated for questioning 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.

However, suspects have one trump card and that is the right to remain silent. If they choose to ignore that right, they can hardly claim that they have been denied their rights. If a suspect chooses to remain silent, there is nothing that the police can do to make them talk short of beating them. (which of course is illegal) If they refused to permit a silent suspect access to a toilet or to water or later to food or even sleep, then the police interrogators can be subjected to punishment and anything the suspect says that may incriminate himself can be disregarded by the court.

A lawyer should not be assisting his client into answering questions that are put to his client by the police. It would be like steering his client on a road that is full of potholes while the vehicle his client is in has no brakes. The lawyer’s role in cases such as this one is to make sure that his client is not railroaded into a conviction of which he is totally innocent.

The right to silence, the right against self incrimination, and the presumption of innocence work together to ensure that suspects are never obligated to participate in building the case against them. Confronted by bits and pieces of incriminating evidence, conjectural or real, the detainee may be wrongly persuaded by the police 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 the detainee’s lawyer to determine its cogency and admissibility, and forego the inevitable temptation to end the interrogation by providing the inculpatory statement sought by the interrogators.

I can appreciate why suspects who are interrogated want to answer questions put to them by the police. They believe that the police don’t have all the facts and are on a fishing expedition. That may be so but generally, the police have the facts and merely want to close the case with a confession.

The trouble is that innocent persons may say the wrong things and their wrongful statements will come back to haunt them at their trials. What they should do is simply tell the police that they aren’t going to say anything other than to say that they are innocent and that they won’t answer any questions without first consulting in-depth with their lawyers about the charges they are facing.

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